Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

January 9, 1862

The Convention assembled at the regular hour and was opened with prayer by Rev. T. H. Trainer, a member.

Minutes were read and approved.

MR. VAN WINKLE. The resolution offered by the chairman of the Committee on
Expenditures yesterday was laid on the table at my instance. It
proposes to authorize the Sergeant-at-Arms to give up the committee
rooms, and as explained refers to the end of the time for which
they were hired. I apprehend, sir, the rooms will not be wanted
after that time; but it is only fair the proprietor should have
this early notice of it. I will therefore ask that that resolution
be taken up and considered.

The resolution was taken up and reported as follows:

"RESOLVED,
That the Sergeant-at-Arms be authorized to give up the rooms at
present used by the committees of the Convention."

MR.
HERVEY. That I think should specify the time when the rooms are
to be given up.

MR.
STEVENSON of Wood. Of course, we cannot give them up before the
end of the present term.

The
resolution was agreed to, with the added words: "At the end of the
current month for which they were rented."

THE
PRESIDENT. The Convention when it adjourned yesterday evening
had under consideration the Report of the Legislative Committee.
The forty-third section would be the next question for
consideration. Will the Secretary report it?

The
Secretary read the section as follows:

"43. No
convention shall be called, having authority to alter the
Constitution of the State, unless it be in pursuance of a law
passed by the affirmative vote of a majority of the members elected
to each branch of the legislature, declaring distinctly the powers
and objects of such convention, and providing that polls shall be
held throughout the State, on some day therein specified, which
shall be not less than three months after the passage of such law,
for the purpose of taking the sense of the voters on the question
of calling a convention for the purpose and with the powers set
forth in such law. And such convention shall not be held unless a
majority of the votes cast at such polls be in favor of calling the
same; nor shall members be elected to such convention, until at
least one month after the result of the polls shall be duly
ascertained, declared and published. And all acts and ordinances of
said convention shall be submitted to the voters of the State for
ratification or rejection, and shall have no validity whatever
until they are ratified; and in no event shall they, by any shift
or device be made to have any retrospective operation or
effect."

MR.
STEVENSON of Wood. Mr. President, I have not had time to
examine this section much but it seems to me that it would be
better to have a two-thirds vote of the members elected to the
legislature to call a convention instead of a majority. I shall
therefore move to strike out of line 282 "a majority" and insert
"two-thirds."

MR.
BROWN of Kanawha. Mr. President, I must oppose the amendment
made by the gentleman. I shall desire to give the reason for doing
so. I cannot free my mind from the apprehension that the
gentleman's proposition was superinduced by the surroundings, by
the state of the country and the very recent history of it. Now,
sir, we are here adopting a Constitution under peculiar and
extraordinary circumstances, the like of which has never been
witnessed on this continent before. We are proposing a Constitution
representing according to the election returns here the very
meagerest minority; a Convention whose actual constituents are
comparatively few compared with the people of this proposed State.
We are prescribing the terms in this clause of the Constitution
which is proposed to chain and firmly bind those people in any
future alterations. We come here not advised and not from anything
that has transpired or that could have transpired in our
intercourse with our constituents, agitating and discussing new and
extraordinary provisions that are brought into this Convention. We
are making changes radical and deep that are wholly new and wholly
unknown to most of the people even that we represent. And we are
doing it, too, when under every human probability this Constitution
is to be submitted back to those people for ratification or
rejection, under circumstances that they will be compelled in
almost every emergency to take it whether it be good or bad. If we
had a constituency free to act, free to discuss the question,
impelled by no corrupt influence and power to adopt whatever this
Convention shall give them, then it might be fair to present any
proposition to the community that they might act upon it. But, sir,
that is not so. We are here embarked in an effort to form a new
State; that effort is superinduced by the circumstances that
surround us. It can only be carried successfully forward by the
very circumstances that are upon us; and if under such
circumstances you present the people a constitution with features
in it, that they may be opposed to root and branch, but under the
circumstances may be constrained to adopt what they hate and
detest, then is it not an outrage to trammel them by saying that a
majority of the people shall not restore and amend it - to say that
it shall require two-thirds of the people to alter this
Constitution when, sir, less than one-fifth, perhaps, are fixing
and adopting it? Already are we introducing into this Constitution
provisions new and unknown to the people of Virginia - provisions,
sir, which in the course of a history of two hundred years have
never been introduced to my knowledge into the legislative halls at
the request of any delegate representing the people of the State;
and yet this Constitution adopted by a few is to be put upon the
people and then nothing but two-thirds ever can get rid of it. I am
one, sir, that expect to vote for this Constitution, whether it
contains provisions I approve or disapprove, because there are
higher and more pressing considerations that impel us to take it,
good or bad, as the least of evils. But when it is presented under
such circumstances, I do demand in behalf of the people I represent
and every other people in the State that it should not be attempted
by this body or any other under those circumstances to trammel the
majority of the people in their endeavors to restore their rights
and liberties if this is to take them away. It is very much like
the Constitution of Kansas that was adopted at Lecompton and
submitted to the people of Kansas. They were to vote for the
constitution with slavery, or for the constitution without slavery.
But no matter how they voted, it was for the constitution all the
time. And, sir, the statesmen of the country repudiated it, sent it
back, because they said it was at war on republican principles. And
I contend it is nothing more than this case; because when this
Convention presents this Constitution to this people, it is a
dernier resort: there is no alternative but to take it and then if
you bind their hands when they have tried it, they cannot get rid
of it or cure its defects save and except by a vote of two-thirds,
you are placing the whole power of the people in the hands of a
meager minority and that is at war with republican institutions. I
hope therefore this amendment will not be made

MR. VAN
WINKLE. Mr. President, I am opposed to this whole section, sir,
to any such provision in the Constitution, I am willing, however,
that those who are friendly to it should perfect it by such
amendments as they may see fit to offer and pass and expect to
offer a few amendments to it myself in the hope that they may be
adopted and in the case the section should pass it would be more in
accordance with my ideas on the subject. This is not as it stands a
proposition to limit the power of the legislature over the sub-
ject but a proposition to limit the power of the people; and to
that, like the gentleman who last addressed us I am decidedly
opposed.

In the
present Constitution of Virginia there is no provision in reference
to amendments of the constitution nor calling conventions for the
purpose. If this provision had existed, sir, the convention that
assembled in June last would not have been constitutional, because
it would have been impossible to get a legislature to call a
convention. It is very true, sir, that the circumstances in which
we were placed in June last, even with such a provision in the
Constitution would have justified us in overriding it -
circumstances such as would have justified any step on the part of
the people to reinstate themselves in possession of their
government. But even then if we imagine no such a state of things
is again to arise, this is crippling the power of the people over
the subject more than it ought to be. It may be desirable, sir,
that the legislature should be somewhat restricted in its action in
reference to this matter; and among the amendments I propose to
suggest is one to introduce at the beginning that no convention
shall be called by the legislature except under these circumstances
that are provided for. There is another very objectionable feature
in it, sir. That is, that the legislature, the inferior body, is to
prescribe to the superior body the people assembled directly in
their majesty, what it shall do. It is very similar to an attempt
that is now making elsewhere to define and limit the act of the
direct representatives of the people, to think for us, to prescribe
for us our duties and even assuming a censorship because we did not
do precisely in accordance with the whims - for it is nothing
better - of two or three gentlemen who seem to be monomaniacs on
the subject. I should not wonder if some of them went crazy before
the week is out. It is now to be determined whether this body
sitting here as direct representatives of the people of the new
State if it is ever made, whether they are to place their
successors, a similar body elected by the people, or in the case
supposed here, sent to alter a constitution - whether they are to
send to their high mightinesses sitting in another body to know
what they are to do. Now, sir, I am against all that. In reference
to the call of the convention in 1850, in the State of Virginia, it
was called, sir, in pursuance of the wishes of the people. It is
true, it was not called as soon as it should have been. But the
voice of the people was coming up - and coming up - and coming up!
And as they sent representatives they were instructed that at last
the convention was called. Sir, I took the ground there, as I take
it here, in the very opening, in the speech I had the honor to make
there on the basis question, I started out with the idea that we
were there with a blank sheet of paper on which to write a
constitution, not bound by anything that preceded us nor anything
else than a just regard to the wishes and will of the people we
represented. When, sir, you give to the legislature a power to
alter a constitution, the power to initiate alterations to the
Constitution - that is, if you give to them the sole power - no
doubt, provisions of this kind are necessary; but I can see no
reason to confide it to that body or enable them to place
restrictions on those whom the people will send there to make it.
It is against principles advocated on this floor already from every
section. Every man here is instructed, as it were, by his own
constituents; and the very beauty, the system and efficiency of
republican government is in this; that while every man here is the
representative of his own peculiar constituents he is also acting
for the whole. Every man comes here in favor of the wishes of his
constituents, and he will endeavor to carry them out as far as
possible. He is controlled, if not in his own opinions and acts
finally by the majority of opinions here, and in that way the will
of the people, which is always the will of the majority of the
people, is fully ascertained and determined. Who knows, sir, when a
convention of this kind meets, what exigencies may arise? Who knows
until they assemble and compare notes and learn the views and
feelings of the different portions of the State what it may be
necessary for them to do. Here, sir, some person or persons having
objection to some particular clause of the Constitution as it
stands, and desiring to introduce some provision beneficial if you
please, have got this Convention called; and as nothing occurred at
the moment in reference to other provisions, this Convention,
called, of course, at the same expense as if there for other
purposes, this Convention is limited to the one thing that happened
to be in the minds of the legislature when they called it. But when
we come together we find that from one section of the State one
amendment is desired, and from another, another, and so on. How is
it to be supposed, with these members met here to represent the
will of our constituents and with the condition always that the
Constitution goes back to their constituency for approbation, that
they are to be tied up and trammeled by an anticipatory provision
of this kind? There can be no necessity for it.

I am,
perhaps, sir, rather wandering outside of the record on the precise
amendment before us. I would say, sir, as a general rule I am
opposed to requiring any more than a majority of the whole number
of members elected to each house for hardly any purpose. I would be
in favor, for instance, in reference to these heavy appropriations
of money that I was getting the will of the people, because so many
private interests enter into that that you cannot be sure that all
the members are voting precisely as they should. But in reference
to ordinary matters of legislation I think the fair republican
principle is that if a majority are in favor of it, it ought to
prevail.

MR.
LAMB. Mr. President, I should be opposed to the amendment which
has been offered by the gentleman from Wood because I think that if
a majority of the members elected to each branch of the legislature
should be in favor of calling a convention, there would be a very
just inference that a majority of the people wanted the convention
also. But for another reason, that even if a majority of all the
members proposed the section still requires that that proposition
shall be submitted directly to the vote of the people themselves
before it receives vitality. I think that these are perhaps guards
enough in reference to this matter. The people, I am satisfied, are
pretty well tired of conventions. But if the majority of all the
members elected to the legislature propose to the people to call a
convention and a majority of the people approve that proposition
where is there any power in this body or any other that can prevent
a convention being held? The objections however of the gentleman
from Wood (Mr. Van Winkle) strike me as most extraordinary. What is
this proposition that is submitted to this convention? That a
majority of the members of the legislature may propose to the
people to call a convention; that if they do propose it, they shall
give distinct notice to the people of what this convention is to
assemble for; that the people shall know when they vote on that
proposition what this convention is called for, whether it is to
pass an ordinance of secession or to amend the Constitution of the
State. Is there anything improper in this? Is there anything at
variance with republican principles in this? The objection does
strike me as most extraordinary. Ought not the people to know when
a proposition is made to them to call a convention why and for what
purpose that convention is to be called? Ought not the people when
a proposition is made to call a convention to have the right to say
by their own votes whether that convention shall be called or not?
And yet these are the provisions to which these extraordinary
objections are made. I must confess, sir, in regard to this
question that I have no such anticipations that we shall be able to
make so perfect a constitution that no amendment will be necessary.
I want, and have prepared, a proposition for the purpose of
amendments without reference to a convention which I will submit
when the Convention acts on this proposition. But I do want to
provide that unless a majority of the people having full notice of
the objects for which a convention is to be called shall approve,
there shall be no convention; that we shall be done with
it.

MR.
STEVENSON of Wood. Mr. President, I do not propose to take more
than about two minutes to reply to the arguments which I think have
been presented against this motion to strike out. Besides, I intend
to make my speeches generally about that length and I hope the
members generally will not exceed that.

A good
deal has been said that has no relevancy to the amendment under
consideration. And what has been said in reference to the
amendment, it seems to me, has been based on a wrong supposition to
begin with. The premises upon which the gentleman started out to
argue are wrong. It is like the man in Scripture who built his
house on sand. When the winds rose and the floods came it fell and
great was the fall thereof! I do not know that I can say that about
the house these gentlemen have built here. It is not a very big
one. Now, sir, it is asserted here by the gentleman from Ohio on my
left that when a majority of the members of the legislature are in
favor of calling a convention it is a correct inference that a
majority of the people are in favor of it. Now, sir, I take it that
that is, to some extent, a mistaken argument - a mistake of the
fact in the case. It is not likely, sir, as a smaller body of
persons are more likely to be mistaken than the great mass of the
people if they have had time to investigate it. And therefore it is
very possible that under many circumstances a majority of the
members of the legislature should be in favor of calling a
convention while the great mass of the people are opposed to it.
But says the gentleman, suppose the legislature had passed an act
authorizing the people to decide the question of whether they shall
have the convention or not, is not the question still left with the
people? To be sure it is. But if you will read the section you will
discover that that act is to make provision by which the polls
shall be opened in every district of the State and therefore the
people must go to an expense of many thousands of dollars to vote
on the question of having a convention. They are sure to vote
against it, but in order to have that vote you have an excited
canvass all through the State and you add to the expenses of the
people many thousands of dollars. Now, sir, you could have avoided
that probably, by having a provision that instead of a majority of
the members of the legislature having the right to call that
convention, or at least authorize the people to vote upon it, it
should require two-thirds. I think that argument is
answered.

Now, sir,
I base my principal argument - and I think it is a good one - in
favor of this proposition upon the fact that in many eases
particularly in a state of great public excitement such as we had
at the termination of the last Presidential election a majority of
the members of a legislature may be induced to call a convention
and then tax the people with the expense of holding these elections
for no purpose whatever but to get a vote on that question which
was probably unnecessary at the time. Now, sir, there is a further
consideration. Any man who will look at the history of this country
for the last year must see that the calling of these conventions
under such circumstances as I have alluded to have been the
principal cause of plunging this great country into the red sea of
secession and civil war. And so, if the legislature is to have this
power, I am in favor of restricting them to the utmost limit at
least within the degrees of propriety; and I do think, sir, that a
provision requiring two thirds of the members of the legislature to
call this convention or to authorize people to vote on it, will
accomplish that purpose.

In regard
to one other argument which was urged by the gentleman (I think)
from Kanawha, that it would be a restriction on the people, now I
think not. If there is a necessity for calling a convention, it
does seem to me if there is any great public question that is to be
decided upon and the people think and believe it to be such there
will be no difficulty if the emergency is such as that, to get two
thirds of the legislature to call that convention; and if there is
such an emergency and the legislature does authorize the people to
vote on the question of a convention then they will have a
convention and the expense of an election and the canvass through
which they will have passed will not be for no purpose.

These are
considerations, sir, which induce me notwithstanding what has been
said against the proposition to insist upon striking out a majority
and inserting two-thirds.

MR.
STUART of Doddridge. Mr. President, I shall be even shorter
than my friend from Wood. I only want to give the Convention one
illustration. If this provision had been in our Constitution of
1830, we never would have got a convention - never! It would have
required two-thirds of the legislature to submit the question to
the people. It will be recollected that the whole northwestern
country and the valley of Virginia were unanimously in favor of the
calling of a convention, which was pretty near an equal division of
the eastern portion of the State in favor of and against it. Under
these circumstances, one-fourth of the people of Virginia would
have controlled the action of the state legislature and we never
would have had a called convention. The same state of things may
arise again. We should avoid this thing. Adopt this amendment of
the gentleman from Wood and a little over one fourth of the people
of the State may hold on to the present Constitution we frame in
opposition to three-fourths of the people and they never can change
or alter it. Because there will be local interests. One half the
State may be unanimous While the other half may be pretty equally
divided and the one-fourth will control the action of the
legislature and will hold on to a constitution that three-fourths
will be opposed to.

MR.
BROWN of Kanawha. The gentleman from Doddridge has given us one
illustration of the bad effect that a provision of the kind
proposed in this amendment would have had, and it is a practical
one too, of a practical bad effect. Now I propose to give him
another practical illustration of the total failure of his
amendment to meet the difficulties in the emergency to which I had
supposed the gentleman alluded in making the amendment. Now, sir,
will any one remember what was the vote by which the Convention was
called by the legislature in 1860-61? I do not precisely remember
but if I am not very much mistaken, it was very largely over
two-thirds. That there was no difficulty at all in carrying it no
matter what had happened the prohibition in your constitution. And
I am free to say if it had required unanimity I have no doubt they
would have accomplished it then. So that while this amendment only
trammels the people in obtaining any necessary amendment to the
Constitution in ordinary times of peace, when they are seeking to
get rid of evils that experience has proved to exist in the
Constitution, in these times of excitement, of revolution, of
determination amongst the most of men to tear up and tear down the
government of the country, then, sir, your Constitution and all
your restrictions are like chaff. They never stop the mandates of
the people when they rise in their might or even large proportions
of them. So that restrictions intended to stop the very evils we
have been witnessing lately wholly failed to accomplish the end.
They furnish trammels against illegal action in ordinary times of
peace but fail to relieve the very difficulty they are intended to
reach. Whenever you find a people rising to the position our people
attained to very recently, then, sir, no paper constitutions, no
power or government or anything of the kind but absolute physical
force by numbers and by steel can maintain the government in its
organized course and provisions. Constitutions are as nothing
before maddened men and they in numbers sufficient to execute their
designs by force. It is idle and useless for us to frame a
Constitution predicated on the position that a restriction to
two-thirds of the legislature is going to prevent such evils as we
are now passing through. I therefore cannot go for this
amendment.

MR.
RUFFNER. Mr. President, I rise merely to dissent from one
doctrine announced by my colleague here, that the people of this
new Commonwealth are going to adopt whatever constitution may be
prepared by this Convention for them with all its errors and
defects and its total changes in our accustomed institutions
whether they approve them or not. I for one, sir, dissent from any
doctrine of that sort, and I say the people will be free to canvass
this Constitution and accept or reject it according to its
merits.

MR.
BROWN of Kanawha. I rise for an explanation. I do not desire to
be understood as my colleague has understood me, that we are going
to adopt this Constitution with every error in, but I intended to
present this idea that under these circumstances we are much more
liable and likely to do it. This Constitution I admit may be made
so bad that with all my disposition to adopt it, I may be compelled
to reject it and thousands of my fellow citizens likewise. But the
idea is that we are much more likely under this pressure to adopt
than if we were entirely free to discuss these
questions.

MR.
RAYMOND. I am in favor of the motion of the gentleman from
Wood. I do think, sir, that to call a convention we should have
two-thirds. Our legislature, Mr. President, is generally filled up
with politicians whom I and the people have very little confidence
in. I think therefore, sir, it would be best to require two-thirds
of them to call a convention.

The
question was taken, and the amendment was rejected.

MR.
STUART of Doddridge. I move to amend by striking out all after
the word "legislature" in the 283 line the words: "declaring
distinctly the powers and objects of such convention and," I think,
Mr. President, it must be apparent to members of this Convention
that this should be stricken out. I cannot understand the object of
it. If in declaring the powers and objects of such Convention it is
the object of the framers of this section to confine the action of
the Convention to specified objects and that we shall not go
outside of it, it does seem to me we have not got that power; and
if that is not the object, I can see no use in it at all. The act
that called us into existence, I believe, started out by declaring
our powers and duties. Still we certainly fall very short of being
governed by the ordinance that called us into existence. I
understand that when a convention is called that that convention is
supreme in power, that it knows no power above it, that it is
equally true of our successors, that we cannot pass a law that will
bind a future convention, who has as much power and control as we
had. And I understand, when a convention is called as the gentleman
from Wood remarked (Mr. Van Winkle) that our constitution is as a
sheet of blank paper and the people have a right to frame and adopt
a constitution new and entire without any reference whatever to the
constitution they have formerly been living under. We are bound in
our action by no constitution, by no legislative body defining our
powers and duties. If so, sirs, we had better adjourn. Quit our
labors at once, because we have far exceeded the powers that have
been given to us if a legislature can control our action. It does
appear to me, sir, that these words ought to be stricken out of
this section unless we are governed now by the action of our
present legislature. Who seems to think that we ought to be
controlled and dictated to by them? They do not consider that we
are legislating for the new State and adopting a constitution for
West Virginia and that they are a legislature for the State of
Virginia and they have nothing in the world to do here. And when a
legislature calls up the subject to know whether they will have a
call for a convention, it does appear to me that legislature has no
right to define the power and duties of the people; and that people
have a right to speak in this thing; and that their delegates whom
they select ought to have the power to control this matter and will
know what the people want and not the legislature. The legislature
is the mere servants of the people. The Convention is the people
themselves. They come up by convention; and when they go there it
is just as though a blank piece of paper was laid down before them
and they know no other power or authority but the people. Merely
submitting the question to the people and we defining the powers of
the convention which the people may desire to call together and
elect seems to me is perfectly absurd.

MR.
LAMB. Mr. President, I have been laboring, if the gentleman's
doctrine is correct, under an entire misapprehension in regard to
this subject, from the commencement. I started on the principle
that all power rests with the people, is derived from the people;
that the people can confer such power as they please on a
convention or legislature or any other body. If it is proposed to
the people, it is not the legislature limiting the power of that
convention at all. If it is proposed to the people to call a
convention with limited power, to call a convention under a law
which specifies the objects for which that convention is to
assemble, and the people do call a convention for that purpose,
then, sir, the convention has no more power than the people have
conferred upon them. That is my doctrine on the subject; and I do
utterly repudiate the doctrine that it is impossible for the people
themselves to call a convention unless that convention is an
unlimited tyranny. I say the people have a right to call a
convention for this purpose or for that purpose; and you look into
the law under which the convention is called and you see the
purpose for which the convention has been assembled. Still there is
one consideration which induces me to say that I have no particular
attachment to the words that are stricken out and it is this: that
put what provision you may in your constitutions as a declaration
of your opinion in times of great excitement, and is not a
practical limitation unless that opinion is ratified by the people.
The gentleman (Mr. Brown) has said very truly, that in times of
great excitement your paper constitutions do not stand in the way
of an excited part of people. Still it may be right to put upon
record, it may be right that the people that are to vote on this
Constitution should record their sentiments, that such and such
principles even in such times ought to govern the action of this
Convention.

The
gentleman from Doddridge, it seems to me, puts the matter entirely
upon a false basis -when he supposes that this clause is intended
to confer on the legislature the power of limiting the convention.
If it has been proposed to the people to call a convention for a
particular purpose, if a proposition is made to the people that a
convention shall be called for one object or two objects and that
convention the people approve of, call the convention for such
objects, are we to be told that that convention when assembled has
unlimited powers? Have the people - the fountain from which all
power flows - have they conferred - can you properly say they have
conferred - upon that convention unlimited powers? Did the people
ever confer upon the convention which assembled at Richmond the
right to pass a secession ordinance? Did they intend to do it? Is
it a correct doctrine that these conventions when assembled must
necessarily have unlimited power? I say not, most decidedly not.
They are called for such objects and such purposes as the people
intended when they assented to the call.

MR.
BROWN of Kanawha. Mr. President, I wish to say, sir, that I
regard this as a very important section, indeed, and therefore must
beg the indulgence of the Convention for the pertinacity with which
I shall adhere to its provisions. I have considered this with some
care and I am unable after an examination of it to see that I can
propose anything better than this section contains as it stands.
Whether we look to the right or to the left we will find
difficulties but the real question is: on which side will we find
the least? We have witnessed in these recent struggles evils
resulting, I think from what I consider a fundamental error, and
that error, I regret to say, I think is still lingering in the
minds of not a few in this Convention. That is, that a convention
once called by the people in pursuance of law is clothed with
complete sovereignty to do as it pleases. There are a few
fundamental principles, sir, that formed the basis and guide of my
life in a political course as near as I am able to carry them out,
and one is that all power is vested and originally was in the
people, and from them alone derived. And another is that all
officers and representatives are but the agents and the public
servants of the people. Is it at all strange that he who has the
unlimited power in himself to do as to him seems best and he
chooses to appoint an agent that he is so stripped of power that he
cannot control and guide and determine the conduct of that agent?
Why, sir, the very possession of power unlimited in myself to
appoint also includes the power to control and restrain that agent
in conformity to my will, not his; and it is to give him in the
way-bill in which I gave him the appointment also the rule that is
to guide his conduct, beyond which he shall not go. This Convention
- men assembled in pursuance of the mandate of the law, by the
order of the people, are as much the agents and public servants of
the people, who alone are the sovereigns as is the delegate in the
legislature controlled and trammeled by the constitutional
provisions he has been sworn to support. And if the legislature, in
pursuance of the law, have laid down and prescribed the way-bill,
the powers that are to be conferred on this Convention - on these
members of the Convention - that act of the legislature has given
to these parties no powers whatever. It is only making the
legislature an amanuensis to write down the way-bill which is to be
ratified and confirmed by the people; and they see when they vote
with their eyes open what powers they are delegating to these
agents and are thereby enabled to determine whether they will place
their powers in the hands of these agents or not, to be abused or
used. You call a convention generally, and then having to go it
blind, they give themselves to these home-made tyrants. For, sir,
tyranny is as complete in the hands of untried men as in the hands
of one emperor. I maintain, in the convention that has assembled,
that has brought us into these difficulties now, one of the very
evils we are suffering from is the fact that they disregarded and
departed from the rule that is prescribed to them in their conduct.
They were assembled for a specific purpose and have disregarded it
and assumed all powers to do as they pleased - not only to override
the wishes of the people but even the constitution. It was started
in South Carolina and it has been asserted in every newspaper that
has advocated secession, that when a convention has once assembled
it is absolutely sovereign and even the people who elected it
cannot control its action. I repudiate the doctrine. When the
people elect a convention, its purpose is prescribed by law. The
only authority appointed by the constitution to prescribe the
powers of a convention is the legislature. It ought to be
distinctly prescribed for what this Convention assembled; and if it
is the intention of the people to have a convention with unlimited
powers, why then they will say so in the law. If they do not choose
to trust these people with these powers, they will say no at the
polls.

There is
another objection that strikes my mind. If you prescribe plainly,
so that the people can understand when they vote for a convention
or no convention what powers are to be delegated to it, then. they
are more competent to decide, and then if that convention assumes
to itself sovereignty and disregards those powers and does acts at
war with delegated powers - in contravention of the directions of
the people - why, .sir, when you come back to the people and ask
them to ratify it and affirm it, it can do as the Richmond
convention did: well, sir, the Convention have adopted it and
therefore it must be right and the people ought to yield to what
their delegates have done. Now, sir, we can say, there is a
specified power granted which they have violated and therefore they
ought not to be regarded and trusted at all. That they have
violated these powers is the strongest reason you can urge why you
should not ratify and confirm the action of such faithless agents.
It is for the security of the people, therefore, that you define
specifically the powers you intend to delegate. And ever hereafter
a free people will be cautious how they trust their rights and
liberties in the hands of an irresponsible convention. It is
putting everything at stake in the hands of a few men; and the only
thing that has been reserved to us was to vote upon it when it came
back; and then when they get the power into their hands they will
give you no opportunity to vote as freemen. They will cover your
land with soldiers from foreign states, and they will accomplish by
unlawful means the ratification of their designs when they violated
the trust reposed in them by the people. Let us therefore restrict
them in declaring specifically what their powers shall be and if
they violate them they will hold them accountable.

MR. VAN
WINKLE. Gentlemen have felt themselves free to say that other
gentlemen have mistaken this whole matter; and perhaps it may
justify me in saying that some other gentlemen have mistaken this
matter.

Now, sir,
in reference to this question of secession, the convention that
assembled at Richmond and which did the deed was authorized by the
legislature to do it. The act of the legislature calling that
convention authorized them to do whatever they might deem expedient
for the safety and welfare of the state. The fullest and most
unlimited power was placed in their hands by the legislature. So
far, then, according to the doctrines that have been advanced here
and embodied in this section, that convention was all right and had
the power it exercised. But they failed in this, sir. The question
of convention or no convention, never was submitted to the people.
There was the first wrong step; and I say that such a submission of
the acts of that convention was nugatory. Suppose, however, that
the question of convention or no convention, had been submitted to
the people, and then the people had voted in favor of that
convention? I ask whether that convention had not, so far as they
could derive it from the legislature the right to commit the act of
secession? Plainly they had, sir, but for this: the language of the
compact, the language of the constitution denied the right of
secession, and therefore the people themselves had not retained the
power to secede except as a revolutionary measure; and every
pretense that was set up in the convention at Richmond or any other
of those states that they were doing a legal act, a constitutional
act, that they were withdrawing from the Union under the
constitution - all that, sir, is false and hollow pretense; and
there is where the act of secession becomes an enormity. But if
this section had been in operation in the State of Virginia at this
time - with this simple exception, that the question of convention
or no convention, was not submitted directly to the people. If the
people elected delegates to that convention, with that single
omission - if that had been there, then unless there was something
in the Constitution of the United States itself to forbid
secession, then secession was right. Or, rather, while it was not
right, the power to do it was properly reposed, according to this
section, in that convention. But then it would require another
ratification, according to my doctrines. But this is not a matter,
in reference to the power of conventions, that is to be decided now
- not a matter to be decided by our preconceived notions. It is
settled if precedent can settle anything. We have our legislative
and our executive to which we confide the administration of certain
powers of the State, proclaiming everywhere, in the Constitution of
the United States, and in the very language of the constitutions of
the several states, that all other power is reserved to the states
and to the people. And now how is the expression of the people to
be had on these grave subjects? By a convention. It is the settled
mode. It has the precedent of every State in the Union and of the
United States itself, that conventions called for the purpose are
those that are to exercise the reserved powers of the State and of
the people. A convention, then, is called without restriction on
its powers. It is called to deliberate on those matters which lie
behind the legislation of the State. It is called to deliberate on
those matters which are embraced in the constitution of the State.
It is called to debate upon matters which are far higher and above
all ordinary legislation. And is a convention which meets in that
way, without any distinct definition of its powers, by the act of
the people themselves, to be so trammeled that it cannot perform
the very act for which it was called? A state of things has arisen
from which the people need relief. They are not to be trammeled by
some legislative provision of the inferior body - a power that is
against the very theory of a legislative body. They are to act in
obedience to the written constitution. That is the doctrine on this
side of the Atlantic, at all events; and the convention that is to
assemble is to act over and above the constitution if the
constitution itself gives any power. Always their acts are to be
submitted to the people for ratification.

But I
think the gentleman from Ohio is under a wrong impression also. He
seems to think it will be simply set forth that this convention is
to assemble for an amendment to the constitution or to perform the
act of secession. That is not my understanding. If that was all, I
do not know that I should object to it. But, sir, some person wants
an additional circuit perhaps, and then the legislature calls a
convention for the purpose of making an additional judicial
circuit. The convention, clothed with the authority of the people,
coming direct from the people, meet together; and although it may
be represented to them that there are a hundred other evils
existing that ought to be remedied they are confined to providing
the additional circuit. That is what I object to. We do not want
these conventions called every day. They are, of course, expensive.
They take men away to attend the polls at extraordinary elections
interfering to that extent with the ordinary pursuits of the
people, and they should not be held every year or every five years
if it could be avoided.

My
doctrine is, therefore, that when this convention does come
together, clothed with the authority of the people to look into the
constitution to see whether it does not need amendment, that they
shall be free to act within the scope of their powers; that they
have power to recommend such amendments to the constitution as they
may see fit, and the people can adopt or reject them at their
pleasure. But my friend from Ohio must remember the people have not
the right to propose amendments. Or if they have the right (as they
have unquestionably) they have not the means of doing it. I mean
the people in the country. They have that power and the means of
exercising it through the instrumentality of a convention; and it
is the only way in which they do have it. And, sir, what harm would
ensue if when a convention is once called it takes the whole
subject into consideration. I have seen it where two successive
legislatures in some states recommending an amendment, that
amendment goes to the people to be voted on. That may be a way and
convenient in some cases to provide for the assembling of a
convention but it is a very slow way, and I do not know that it is
a very efficient way. It might be well enough perhaps if some error
had been committed by the representatives of the people in
convention and had been equally promoted by the people themselves
that there should be some way of proposing amendments to the
constitution as is vested in the two houses of Congress and in some
states is vested in the legislature. That might be well to guard
against an oversight of that kind. But when a convention is clothed
with the authority of the people it is contrary to every principle
on which these bodies are organized, to all precedent in the
history of this country, to the very nature of the case, that they
should be confined to deliberating upon single amendments which
happen to be picked out by the legislature for their action. Let
them take up the whole subject and the necessity for a convention
every two or three years will be obviated. There is not too much
haste. Constitutions have been freely altered throughout the
country, but few alterations have been radically or materially
changed under at least twenty years. In the great progress that
;has been making in the science of legislation, as in all others,
our material enlargement, such as railroads and other facilities,
has no doubt required meetings of the people in convention oftener
than would be required under other circumstances. These great
inventions that the awakening of the nineteenth century has
witnessed .have made it necessary frequently to introduce
provisions in the constitutions that were utterly unknown before.
These great works of internal improvements have called for many
restrictions in our Constitution to safeguard others that would
have been unknown in the previous century. "We must keep pace with
the times," as Jefferson said, and a few years of experience in
reference to these matters are worth more than all the book
learning ever made on the subject. I maintain, again, that when the
people do assemble in convention by representatives directly from
them they should be free to act within the proper limits of such
bodies. Circumstances often do impose a limit even on conventions.
They cannot be a tyrannical body when their acts are of no force
until ratified by the people. The argument drawn from that
consideration is a nullity here. No one proposes that a
constitution be made by a convention is to go into operation until
it has received the sanction of the people. If the seceded states
had dared at the time when they first seceded to submit their acts
to the people of their states, it is doubtful whether one of them
would have assented to it. If the act of secession had been fairly
submitted to the people of Virginia - although I deny that we have
any evidence that a majority did sustain it - I am very certain if
it had been submitted and the people had been free to vote on the
subject, that act never would have been sustained by the people of
Virginia themselves. Sir, from the beginning it was a usurpation;
it was a continued usurpation; it was intended as one; and those
who framed the law which the members of the house of delegates
voted for, with the exception of four members - I do not know how
it was in the senate - but they voted to put in the hands of the
convention the power to commit the act of secession if they had not
been restrained by the Constitution of the United States. They were
to do whatever they deemed expedient. Not, as in the case of the
June convention, to do what the welfare of the people might
require. Their powers were unlimited, and they cheated the people
by refusing to submit the question to them in a proper form. Before
that question was submitted they had sold us to the Confederate
states; and while the legislative act required that everything they
did relating to the fundamental law - the relations of the state -
should be submitted to the people, they did not even pretend to
submit that convention with the Confederate states to the people;
and they simply declared that if the people voted in favor of
secession they were understood to vote in favor of joining the
Confederate states. It was just as great a cheat as the case of
Kansas, to which the gentleman from Kanawha alluded.

I do
think, sir, there is a principle lying at the bottom of this. When
the people do assemble in these conventions, the mode in which the
reserved powers of the people have always been expressed, that
power above all others should be free to act in the premises as the
good people may require it. We are controlled, and will be, by the
Constitution of the United States, and what we have assented to
there we cannot gain-say that. We cannot overthrow it. We cannot
separate ourselves from it unless by revolution. And with that
single restriction. When the people do meet in convention, they
will have - for they cannot be deprived of it by legislative
restrictions at all events - the power and will exercise it to do
whatever may seem to them good. And I do most solemnly declare if I
were elected a member of a convention with these restrictions
placed upon me that I would not regard them and would advise others
to disregard them, believing them nugatory. That is my opinion,
that any restriction placed on a body of that kind except by those
who are the constituents of it would not be binding upon them.
Certainly any one knows that unless the legislature was clothed by
the constitution with power to restrict, they could not in the
nature of things restrict such a body. But whether we could - as
one gentleman here has observed, a Convention sitting here today
representing the power and majesty of the people, have the right
through a constitution or otherwise to bind another convention
constituted precisely in the same manner is very doubtful. I know,
sir, we hold that one session of a legislature cannot bind its
successors. One session of any public body cannot bind its
successors. Congress cannot; the legislature cannot do it. There is
no act that the legislature can do within its constitutional power
that the next legislature cannot repeal. And is it different in
regard to this? Can one convention of equal power only bind another
of equal power? To me the idea is preposterous; and therefore I am
inclined to say that as I think even with such restrictions placed
in the Constitution the subsequent convention would not be bound.
There would be no authority there to bind it except one co-equal
with its own. If one convention place their restrictions, the other
convention having equal power, having the same constituency, coming
together in the same way must have power to repeal what the former
has done. Therefore I think that any restriction of this kind
should be erased from this section, if I am right in my
understanding of it, that they are not to prescribe the general
scope of the Convention but to prescribe what amendments the new
convention is to make. That is my understanding, that when the
legislature passes an act calling a convention, it does prescribe
the precise amendments which the convention is to consider; and
then, as I have already hinted, when that act of the legislature is
submitted to the people there is no means by which the people can
say; we wish also another subject considered.

MR.
LAMB. The gentleman from Wood, in showing the mistakes into
which I have fallen, laid down this fact in regard to the Richmond
convention, that so far as the act of the legislature was concerned
which called that convention there was ample authority in that act
for all the Richmond convention did. I think he will find - and, in
fact, another part of his address admitted it - that he was wrong
and I was right in this: that the act under which that convention
assembled did not authorize the action of the Richmond convention.
There was certainly a provision in that act under which the
Richmond convention was assembled that no action of theirs changing
the relation of the state towards the Federal Government should be
of any effect until it was submitted to and ratified by the people;
and what did they do? Was their secession ordinance of any effect
until it was submitted to and ratified by the people? No. One of
the grossest and most outrageous acts of tyranny which that
convention perpetrated was that they put that secession ordinance
in force before it was ratified by the people and that they placed
the people in a position in which they could not exercise their own
free judgment in saying whether that action should bind them or
not. Even upon the law of the legislature which called them
together, they were guilty of a gross usurpation of power in a most
essential particular. In defiance of the very law to which they
owed their existence, they fastened by military force that
secession ordinance and the laws of the Confederate states, so far
as was in their power, upon the people of Virginia, making the
provision in that law that secured the people the right to vote a
mere mockery.

MR. VAN
WINKLE. Will the gentleman permit me to say simply that I say
the whole subject of secession - everything connected with it - was
forbidden by the Constitution of the United States.

MR.
LAMB. That is not what the gentleman said. He said the law
under which that convention was called was sufficient of itself to
authorize their acts. I say the law itself under which it was
called was violated, as they violate every other principle of
republican government.

MR. VAN
WINKLE. I said it was sufficient provided they were not
restrained by the Constitution of the United States.

MR.
LAMB. I say, in addition to that, that they violated the very
act under which they were called in its most essential particulars.
There is a radical difference of principle in regard to this matter
between the gentleman from Wood and me. The gentleman contends -
and it is the principle on which his whole argument is based that a
convention cannot be assembled but what it becomes vested at once
with all the reserved powers of the people. This is the principle
upon which he bases his whole argument. My principle is radically
different. I say the people have the right to vest in the
convention what powers they please, as they can do in any other
public agent. I say the convention is necessarily the agent of the
people, the servant of the people, and vested with just such
authority as the people have seen proper to confer upon them. It is
not one convention pretending to bind another. It is the people who
bind both. It is not a legislature pretending to bind a convention
or to limit their powers. The act of the legislature that proposes
a convention derives all its force from the vote of the people who
approve of that act. It is nothing more than a mere proposition of
the legislature until the people act upon it. If the people so act
upon it as to authorize the call of a convention under that act,
then that action becomes power of attorney to this agent, becomes
the constitution, in fact, of this body, which is called under and
in pursuance of it - their limit to the purpose and objects which
are declared in that convention. If I supposed that the clause
which is now under consideration was to operate in the way the
gentleman from Wood represents that it will, I should be very
willing to give up this clause. If the legislature are to frame a
particular amendment to change a judicial district and then call a
convention to act on that, do any of us contemplate that
conventions will be called on such subjects? I suggested before and
I think it will be necessary to adopt as a part of this
Constitution some provision for making occasional amendments
without resort to conventions. I have examined the constitutions of
the different states in reference to that matter and I find in no
less than twenty-seven out of the thirty-four they adopt some plan
or other of obtaining occasional amendments without the necessity
of resorting to conventions. The provision which was mentioned by
the gentleman from Wood is a very common one that a particular
amendment which it is desirable to make to the Constitution should
be proposed by one legislature after a new election intervened and
a new legislature is chosen by the people, the people having full
notice that such amendment has been proposed and electing new
members to each house with reference to that particular subject.
Then a subsequent legislature acts upon it, and, if they approve
it, it goes to the people for ratification at the next general
election. Some provision of this kind it will be necessary to have
in the Constitution; for I do not imagine we are going to make so
perfect an instrument that it will not be necessary to amend it in
some particulars. It is necessary to have some provision of that
kind for another reason. These conventions ought to be reserved for
great and pressing emergencies. They are not the sort of a body to
assemble for the purpose of considering whether a judicial district
shall be altered. It is not for purposes of that kind that they
should be called.

I must
confess the greatest objection I have to see this section stricken
out is that it may be regarded as expressing the sentiment of this
Convention in favor of the doctrine that has been here advanced
that no convention can be called unless it is ipso facto
necessarily invested with all the reserved powers of the people. I
do protest against that doctrine. I repudiate it entirely. It is
the doctrine which has led us and the other states into secession.
Had the convention at Richmond regarded even the act under which
they were called, the people of the State of Virginia would have
been secured at least a fair vote on the ordinance of secession if
nothing else. But they held, and it was the current doctrine there
that these conventions were unlimited; that they possessed, they
represented, the sovereignty of the people. No, gentlemen, No!
These conventions are like every other body that is elected by the
people, and every officer that is elected by the people, they are
the agents and servants of the people, invested with such authority
and such authority only, as the people have conferred upon
them.

I wish
before I sit down to make an explanation of the section, which may
be misunderstood. It proposes nothing but this - this is, in short,
the effect of the section: That the legislature, by a majority of
all the members elected to it, may propose to the people to call a
convention, specifying the purposes for which that convention is to
assemble, that that proposition has no further effect than to
secure a vote upon it by the people; that if the people ratify it,
then the convention is to assemble for the purpose, with the
powers, which the people acting under that act have conferred upon
them; and, further than this, that after they have assembled their
ordinance must be submitted to the people for ratification. That is
the simple object of the section.

MR.
STUART of Doddridge. Mr. President, I do not want it understood
by any means in the world, sir, that I look upon a convention as
having supreme power. I want it distinctly understood that I hold
that a convention is limited and controlled by the Constitution of
the United States, and that all powers not denied to the people by
the Constitution of the United States are held by the convention.
Of course, we do not pretend to say that a convention called by the
people, a state convention would have the power to act in conflict
with the Constitution of the United States. We deny that
right.

MR. LAMB.
Excuse me one moment. I did not suppose the gentleman did advocate
that doctrine, nor did I say he did.

MR.
STUART of Doddridge. Yes, sir.

MR.
LAMB. The Constitution of the United States itself says that
the powers not delegated to the United States by the Constitution
nor prohibited by it to the states are reserved to the states
respectively or to the people. But I did suppose the gentleman was
contending for this doctrine that all these reserved rights of the
people - the whole sovereignty which the people have under the
Constitution of the United States - is necessarily conferred upon
the convention. That doctrine I deny.

MR.
STUART of Doddridge. It is not necessary to bring up the
ordinance of secession passed by the Richmond convention last
winter as an argument against striking out these words. Because it
was not entertained there even by a majority of the Richmond
convention that they had the right of secession but exercised it as
a revolutionary measure. And we can do nothing here in the world
that would restrict the people in exercising what they call their
revolutionary rights. It makes no difference what kind of a
constitution we frame - whether we say the power shall be
distinctly declared by the legislature to call a convention or not
- when that convention assemble, we can do nothing here in the
world if they propose to take upon themselves revolutionary rights,
because that is a power above all other if they choose to exercise
it. There is no necessity of trying to legislate against a matter
of that kind. There could have been no danger had the convention at
Richmond last winter respected the provisions of the constitution
of 1850-1. That would have prevented them doing what they did. They
exercised what they called their revolutionary rights and took the
power into their own hands, disregarding the will of the
people.

But I want
to avoid this difficulty, declaring distinctly the powers and
objects of such convention. If the legislature sees proper to
submit the question to the people whether they will have a
convention for some particular purpose that we do not want, the
people shall be confined simply to the action of the legislature.
Then the people cannot have a convention unless it is restricted
and confined to certain powers that the legislature may see cause
to present to them. There would be no way by which the people could
have a call for the convention if we adopt this only by the
legislature restricting and defining what powers it may exercise.
They cannot get it. The people may want other amendments to the
constitution. That would be defined by the legislature. They could
not do it if the legislature sees fit to restrict the people, if it
is the option with them to do; that it is the people who have the
right to say what they want done, and if they want to call a
convention their delegates know what the people want and they will
conform to it and not be restricted by any legislative action on
the subject. There is no power of calling a convention at all if
the legislature has to define and restrict it. Let the legislature
do it. Let the legislature adopt it if they have the framing and
forming of the acts of the convention, why not give them the power
at once? There is no propriety in calling a convention. I cannot
see the object and purpose of it, calling a body here who are
restricted and confined and whose labors are pointed out and whose
acts are to be confined to the action of the legislature. Give us
the power to complete the work when we are collected
together.

MR.
POMEROY. I am in favor of the motion of the gentleman from
Doddridge to strike out this clause because the clause is
unnecessary. No practical benefit is to be derived from it. I
concur with the gentleman who has just taken his seat that if the
legislature is to define all the objects and all the powers of the
convention that is afterwards to assemble, why not go on and do the
business themselves? If they know exactly all the amendments that
ought to be made to the constitution - what the desire and wish of
the people is - why trouble the people with voting for new men and
voting upon the subject of whether they will call a convention or
not. If they know all these affairs, why not transact the business
themselves? Then besides, I imagine that with all the wisdom that
may be found embodied in the legislature at a particular time, when
they pass this act calling and specifying that there shall be a
convention at a certain time, how do they know of the questions
that the people may wish acted on months afterwards? It provides
that some three months after the act shall pass the vote of the
people shall be taken. How many evils among the people in the
different counties labor under, would these members of the
legislature be aware of at the time they pass this act? The
question of a convention has not been agitated and brought before
them in the way that you can determine what the wishes of the
people are at that particular time. And after the act is passed and
the people begin to look into their old constitution to see what
amendments they wish made. And therefore I believe that the
convention is the people assembled. Not all the people in the mass,
because that would not be convenient, but they have delegated to
the members of the Convention the powers that belong to the people
themselves. They come up there. Why should they not have power to
take up any legitimate subject that may come before them? Not to
violate the Constitution of the United States, which is the supreme
law of the land and which we ought to recognize as such, and do,
and which all men ought to that live under this Constitution. But
to adopt such amendments as the people may demand at their hands.
And they will be held responsible by the people. And I believe
these powers ought to be lodged in the convention itself and not in
the hands of the legislature. And, therefore, without making any
lengthy remarks - for I think the subject has been very fully - I
might say without any flattery, very ably - discussed, why I am in
favor of striking this clause out; and I would indicate that I wish
the yeas and nays on this question when it is taken.

MR.
PAXTON. It appears to me the question we are called to decide
by the motion of the gentleman from Doddridge, to strike out, is a
very simple and plain one. It is merely whether the people in
calling a convention - because conventions are called by the people
and not by the legislature - whether the people in calling a
convention have the right to restrict that convention; or whether
in the language of the clause itself, they have the right to
declare distinctly what powers and for what objects such convention
when called shall exercise and act on; or whether, on the other
hand, in calling a convention, they surrender entirely their
sovereignty into the hands of that body - create, in fact, a body
of despots; because that is what they are when the entire
sovereignty is surrendered into their hands. Viewing the question
in that light, I cannot hesitate a moment as to my vote on that
question. I cannot believe the members of this Convention can
hesitate in regard to it. I hope it will by an overwhelming vote
repudiate the principle which at least seems to be implied by the
motion to strike out this part of the section.

MR.
HERVEY. I shall vote to strike out. I have prepared a
proposition identical with that proposition now under
consideration. The gentleman from Ohio seems to be afraid of
despots and despotisms. That is what I propose to avoid; what is
proposed to be avoided by the amendment of the gentleman from
Doddridge. I maintain that by this proposition the people have
merely a negative vote. They have no affirmative vote as to
originating propositions. The legislature makes propositions. They
are submitted to the people. If the people condemn those
propositions, what then? Nothing else. Wait for another little
budget of papers from the legislature. I am decidedly in favor of
striking out. I am in favor of this power remaining where it is and
where it ought to be, with the people themselves, and not
delegating it to the legislature and thereby incorporating in one
body both powers of legislation and power to make a constitution. I
maintain that if this provision is retained the people of the State
have merely a negative vote; not a positive or affirmative vote. I
shall vote to strike out.

MR.
STEVENSON of Wood. Mr. President, I wish to add a very few
remarks in reference to one portion of this subject which I think
has not been so much spoken of as the subject in general. I may say
first, sir, that I regard the provision as it reads as a very
wholesome one, and shall vote against the amendment of the
gentleman from Doddridge to strike it out. I was in favor of
restricting the legislature even beyond the restriction in the
section here on this very subject; and I am now in favor of
limiting any convention that may be called by the legislature upon
any subject, or at least upon some subjects upon which they may be
called to act. The idea is conveyed by remarks which have been made
that the convention, if this provision is retained, will be
necessarily restricted and unable to act as the necessities and
public interests of the time might seem to indicate or require. I
think that is a mistake; because although the convention thus
called by the legislature or proposed to be called by it, although
limited, may be said notwithstanding that limit to have almost an
unlimited power if the legislature see proper to give it to them.
The legislature - if I understand this properly - are to declare
distinctly the powers and objects of such convention. If there are
great questions at that time in which the public are interested or
which public safety may require, the electors to act upon, is it
not clear the legislature can give the convention power to act on
all such questions; upon any number of questions; upon every
question in which the public of the State may be interested at the
time that convention is called? I say even if this provision is
retained the convention may have almost unlimited power to act on
these questions. Hence I am in favor of retaining this restriction.
It does not prevent the legitimate and proper and ample action of
any convention which may hereafter be called to take into
consideration the interests of the people of this State. I think it
right, judicious and safe to put some restriction on any convention
which may hereafter be called to consider such matters; and I
cannot think of any provision that meets the need so well as the
section just as it reads. For that reason, I shall vote against
striking out.

MR. VAN
WINKLE. I would ask the indulgence of the Convention, not to
re-argue this question but simply to put myself right. I speak
hurriedly and do not always perhaps say what I intend to. How that
may be I do not know. I do not suppose any gentleman here would
state what I did say except as he understood it. But I wanted to be
understood as saying that setting aside the restraints of the
Constitution of the United States - which was the great sin of the
Richmond convention - the great sin of secession - that the power
vested in them by the legislature was entirely sufficient authority
to pass the ordinance of secession. That I stated, sir, and I now
add that it was also sufficient authority for them to make war. I
wanted to show there that the legislature had committed the first
error - and a great one - by giving to that convention the power -
or pretending to give it - for really they could not - to do
whatever they might deem expedient with the full understanding that
the question of secession was to come up; and upon the existing
relations between the United States and some of those now revolted
states, any fair interpretation of the power vested in that body by
the legislature would authorize them to pass the ordinance of
secession, setting aside, of course, the Constitution of the United
States, and would authorize them safety of the state, as they
conceived it, to open the ball of war.

I have to
regret that that act of the legislature calling that convention met
with but four negatives in the house of delegates, and one of them,
I think was from my county.

There is
another point which I can correct from reference to the remarks of
the gentleman from Ohio (Mr. Lamb). I never contended the people
were to place their reserved powers in the hands of the convention.
I never said that. I never thought of it. I mean to say I did not
mean to say it. I am a Dutchman and have a right to speak twice.
The whole scope of my argument will show that I did not mean it. I
meant to say the convention is the instrument by which the people
of the state exercise their reserved power. This is outside of
ordinary legislation the only instrument by which they can exercise
it. While, therefore, I wish no restriction except those the people
may directly impose be placed in this instrument in advance, when a
convention assembles and is the instrument of the people in
reference to those and after some years another convention
assembles with the same powers and authority derived from precisely
the same source to determine what is the matter, is to be trammeled
by the action of the former; and that I say contradicts a
well-known principle in reference to legislative or deliberative
bodies, that one cannot of itself, of its own authority, bind its
successors.

MR.
LAMB. I do not intend to reargue the question. I only want to
make an explanation. I am willing myself to accept the gentleman's
principle as he has now qualified it, that the convention possesses
the reserved powers of the people, subject to such restrictions as
the people themselves may impose on that convention. That I suppose
is pretty near the correct principle. Now, how are the people to
restrict the convention? How is it possible for the people to act
on such subjects except just in the way that is pointed out by this
provision? Is there any other possible way in which the people can
act on a matter of that kind? Except by having a proposition
submitted to them by the legislature - their own agents; their own
servants; for the legislature is so, and we presume it represents,
in some degree, at least, the wishes of the people - by having a
proposition submitted to them by that body which they can confirm
or reject? Is there any other possible mode in which the action of
the people can be had in reference to questions of that kind? The
gentleman from Brooke is willing also, I suppose, to admit the
doctrine that the people may restrict these conventions; that they
do not necessarily as soon as they are assembled possess themselves
of all the reserved rights of the people and become, as was
correctly said an assembly of despots, invested with unlimited
despotism, according to the doctrine here contended for.

MR. VAN
WINKLE. I would call the gentleman's attention to the fact that
the people must ratify what the convention has done. That is what I
have insisted on myself, and that is where the people save
themselves.

MR.
LAMB. Certainly, the people must ratify what the convention has
done, and this is to be the great protection for the people! How
was it in reference to the ratification in the case of the Richmond
convention? Did not we reserve the right to ratify the acts of that
convention? Did not we tell that convention their acts should have
no effect until they were ratified by the people? We need some
further protection than that. Other conventions may act as they
acted and render the ratification a mere fraud upon us. I would ask
the gentleman from Brooke who says he is not willing to consent to
any restriction on these bodies except what the people propose,
what other plan he can devise for the people when they wish to
restrict the powers of these conventions than to have a proposition
to that effect submitted to vote at an election to approve or
reject? Can you assemble the people all together in this hall, or
any hall, to discuss these matters, to hear this thing and that
thing suggested?

MR.
HERVEY. I merely wish to prevent the legislature from
originating these propositions alone.

MR.
LAMB. Who alone ever can originate them? How alone is the
matter ever to be submitted to the people for action? Will your
governor originate them and submit them? Or will you wait until you
can assemble the people all together to discuss the matter and hear
amendments proposed and questions of order raised in an assemblage
of millions of men? There is no other mode in which the people can
act. The propositions must be prepared by their servants and
agents. We must not assume that the legislature, if the people want
a convention assembled with such and such powers will necessarily
set themselves against the will of the people in that respect. They
are the servants of the people, elected by the people, elected
annually. They will act, and they will submit such matters to the
people unquestionably as the people desire to have submitted to
them; and it is the only way in which the sense of the people can
ever be had in regard to such questions.

The Chair
stated the question was on the amendment offered by the gentleman
from Doddridge, to strike out the words: "declare distinctly the
powers and objects of such convention."

MR.
SOPER. I would suggest to the gentleman to modify his motion so
as to strike out only the words "powers and" so the clause would
read "declare distinctly the objects of the convention."

MR.
STUART of Doddridge. I would rather test the sense of the
Convention.

MR.
SOPER. I then move to amend the gentleman's motion as
indicated. The necessity of it is this: We have been entertained
here this morning, very much indeed myself, by the discussion; but
I apprehend that nothing which has taken place heretofore can be
embraced within the object of this section. The object here is to
amend the Constitution. Beyond that no power can be conferred upon
any convention which will be called in pursuance of this section.
But to enable the people to vote intelligently on the subject it is
necessary that the legislature should designate generally the
necessity or the object for which they are to call this convention.
It appears to me they cannot vote understandingly until these
objects are plainly put before them; and when the legislature put
the objects plainly before them showing the necessity of a revision
of the Constitution, its alteration, the people then will elect
delegates with that view. But, sir, I am opposed to any
restrictions in that law to those particular objects. Those objects
of necessity will be included within the powers delegated to the
convention; but if in the wisdom of the convention, or of the
people, it should become necessary to add or to make some other
alterations not authorized by the legislature at the time of
calling the convention, I want that convention clothed with the
power to remedy those defects. And I apprehend that what we have
heard here in relation to the dangers of this Convention assuming
unlimited powers, I do not myself apprehend anything of that kind.
I think it myself beyond a probability. A convention coming
directly from the people whose attention has been called to the
object by a previous act of the legislature, and it having
reference to altering the organic law of the State, it does appear
to me that gentlemen elected to a convention under such
circumstances will come here expressly for the purpose of carrying
out the views of their constituents; and no radical act or nothing
directly in opposition to their wishes will be enacted by this
Convention.

If the
convention is to be restricted to the alterations prescribed by the
legislature, it will be said that they will be restricted in the
very language of the act and they will not be permitted to alter
even its phraseology or its meaning in any respect. It appears to
me you are incurring here an extraordinary expense upon the people
for no very particular object. No necessity. We had better adopt at
once the proposition to let the people vote directly upon the
proposition of the legislature, whether they will have it or not.
There is no necessity of calling a convention to come up here if
the legislature propose to alter the constitution and designates in
what way and to what extent and for what purpose it shall be
altered. There is no necessity of having the people go to the
expense of assembling a convention to merely reiterate their own
desire on that subject. Because the very instant they say there is
not a necessity for a convention they adopt the proposition
proposed by the legislature - the people do. But if that convention
are to come, carrying out mainly the great object avowed in the law
with the power of making such alterations and additions as in their
judgment may be necessary and beneficial to the people, why they
ought to have that authority. Then what would be the necessity for
calling a convention? I am satisfied that no convention will be
called for the purpose of amending this Constitution unless it be
for very important Changes; and if, as suggested by the gentleman
from Ohio, he has in contemplation preparing an amendment or
authority be given to the legislature to propose one or more
amendments to the people for ratification under such restrictions
as will enable the people to get a free and unbiased expression of
the wishes of the people as to the necessity of that amendment - if
he proposes such a clause in the Constitution it will answer, I
apprehend, all the necessities that may grow out of such errors or
omissions as we here shall give ground for in the Constitution we
are about to adopt here, and will attain the object in that way.
For instance, it has been stated here that there are some
twenty-odd states of the Union which have got provisions of that
kind in their constitutions; and I would now like to see something
like this: let a distinct amendment be proposed by the legislature.
Now, if it is not to be sent down and considered by the people at
the next election, they not only will delegate their delegates with
a view to that amendment, and if at the second or next succeeding
session of the legislature they should adopt the same amendment,
let it then be submitted to the people and become a law.

MR.
LAMB. That is precisely the amendment I propose to offer as an
additional section.

MR.
SOPER. I should like to see a section of that kind, and then I
would vote for the section now under consideration declaring
distinctly the objects to the people. But when they call a
convention under this section I want them clothed with all the
power necessary in order to remedy defects that may be discovered
in the Constitution. I apprehend there is no danger here of a
convention undertaking to take away the rights of the people. If
they should do it, the inherent power which rests in the people on
all occasions, which has been exercised here in the reorganization
of the government of this State, the people would rise up in their
majesty and hurl those members of the convention out of their midst
and repudiate entirely their acts and set up a republican form of
government such as they would desire to have. I shall be compelled
to vote for the amendment, if my amendment is lost, of the
gentlemen from Doddridge, but I prefer my motion. I want it to read
"declare the objects" omitting the word "distinctly"
also.

MR.
PAXTON. Gentlemen appear to discuss this question here as if
the adoption of this proposition would operate at once as an
absolute restriction on any convention. It is nothing more than
simply retaining in the hands of the people the power to impose
such restrictions as they please. If they choose to delegate all
the power to a convention at that time, they can do so. But it is
nothing more than retaining the power to impose such restrictions
at the time when a convention may be called. Merely retaining in
the hands of the people the power to surrender their entire
sovereignty to them or to reserve whatever they may in their
judgment think best. That is the whole question.

MR.
SOPER. The difficulty between the gentleman and myself is this:
If I understand him, he thinks the people have got to reserve to
themselves the power of conferring upon the convention all power;
that they are not restricted by law. Now, I do not understand it
so. That is the object I want to attain. I want them to come
clothed with all the powers expressed in the law; but if it be
necessary to alter in their judgment in some respect I want them to
have that power. If it be necessary to add an additional amendment
to the Constitution, I want them to have that power. But I think,
after all, it will be but an amendment to the Constitution and then
it is very well guarded hereafter; must come back for the
ratification of the people; and here are very strong words to show
that there shall be no shift or device to frustrate the objects and
desires of the people in relation to it. They will have the
controlling vote upon it after it comes back; and this Convention
will have no power to take it away from the people - their
subsequent ratification of it, nor give it any effect until after
the people have ratified it. Now, if this law declares distinctly
the power of the convention and if the convention shall be ordered
for the purpose with the power set forth in such law, I apprehend
they cannot go out of them; they are tied up. The amendment that I
propose requires the law to set forth the objects or in other words
the necessities of the convention, so that the people may act
intelligently on the subject. If the people thereafter should call
the convention, that that convention shall carry out substantially
the objects for which the people have elected them, submitting
their acts afterwards for ratification before they can have any
effect.

MR.
LAMB. Mr. President, I imagine the construction of the section
given by my colleague from Ohio (Mr. Paxton) is strictly correct;
the effect of the section and nothing else. If the people want a
convention assembled for the purpose of amending the Constitution
and the law is passed calling a convention for that object, which
the people ratify, I take it that is declaring distinctly the power
and objects of that convention. Or the convention perhaps might be
called - though I know of no example of that kind - for the purpose
of amending the Constitution in a single particular, say relating
to the legislative department. That would be distinctly defining
the powers and objects of the convention; and that may be ratified.
Then still, if the people wish it, they have the power of calling a
convention with unlimited powers. But it leaves in the hands of the
people the power of restricting these conventions as to them may
seem proper according to the emergency of the time. Such, I take
it, is exactly the effect; and it cannot be misconstrued under
operation of the provision as it now stands. It seems to have been
discussed, however, throughout by the parties who are opposed to it
as if it would require the power of the convention to be limited to
making some special trifling amendments. It imposes no such
limitation whatever. If the people see proper to ratify it, the
convention can be called under this section possessing all the
powers reserved to the people under the Constitution of the United
States; but it can be called for such other and distinct objects as
the people may desire. For I take it for granted that whenever the
people do desire a convention to be called, whether for an object
where they are possessed of all power or for a distinct object
needing only limited authority, if one legislature will not do it
they will turn that legislature out and put in another that will.
For it is their will, from the beginning to the end, that is to
govern in this matter, and not at all the action of their own
servants, men under their control, which is to initiate it, simply
because it cannot be brought forward in any other manner. After the
proposition is made by the legislature, they will have the right to
vote direct on the question whether a convention shall be called or
not. It is simply reserving the power, if the people see proper to
do it, to call a convention, for particular purposes. At the same
time they have the same power under it and must have of calling a
convention if they see proper, with unlimited powers. the
president. the Chair would take this occasion to call the attention
of the Convention to the fact that in the consideration of the
amendment to the amendment the discussion should be limited, while
gentlemen are traversing the whole question. Gentlemen will confine
themselves to that amendment.

MR.
LAMB. I must apologize to the Chair and to the Convention. I
know I have overgone my privileges on this occasion, but I don't do
it very often. The general subject was introduced as soon as the
amendment was offered. It was not introduced by me. I made no
remarks on the general matter except in reply to previous remarks
of that character.

MR.
STUART of Doddridge. The hour of recess has arrived,
sir.

MR. VAN
WINKLE. I cannot conceive the propriety of making an amendment
without discussing the whole subject. It may be that amendments
might be proposed that are not of that character; but when I go to
show why a thing should be stricken out, I must go into the whole
subject.

THE
PRESIDENT. The hour for recess having arrived, the Convention
will take a recess.

On
reassembling, the President in the chair:

MR.
STUART of Doddridge. Mr. President, I rise to know if we cannot
have a division of the question in some way. I want to vote for the
amendment of the gentleman from Tyler; but in voting for his
amendment, if it is adopted I am precluded from voting to strike
out the residue, and the friends of striking out are left in rather
a peculiar situation.

THE
PRESIDENT. The Chair is of the opinion that it would be
competent to vote for the amendment of the gentleman from Tyler and
afterwards to vote to strike out the whole.

MR.
STUART. I think not.

THE
PRESIDENT. That would be the opinion of the Chair.

MR. VAN
WINKLE. The amendment of the gentleman from Tyler is a
substitute for the amendment of the gentleman from Doddridge; and
if it is adopted, the amendment offered by the gentleman from
Doddridge falls. He offers to amend it by making a different
proposition.

MR.
STUART of Doddridge. I do not understand the gentleman from
Wood.

MR. VAN
WINKLE. I say the proposition of the gentleman from Tyler is a
substitute for yours.

MR.
STUART of Doddridge. If we vote for the substitute, we will not
have the privilege of voting for the amendment; and I want to know
if we cannot divide the question in some way so that we can have a
vote upon striking out the whole.

MR. VAN
WINKLE. The way to do would be to withhold the amendment of the
gentleman from Tyier until this is tried.

MR.
SOPER. I will do so. Mr. President, I withdraw it for the
present.

MR.
PAXTON asked for the yeas and nays. They were taken and
resulted as follows:

So the
amendment to strike out was adopted; and the question recurring on
the section as amended, it was agreed to.

MR.
LAMB. Mr. President, I rise to offer an additional provision in
regard to amendments. Let us take what care we may in regard to
this subject, undoubtedly the Constitution which we shall propose
will be liable to many defects. It is almost necessarily the case,
I may say, for no man and no set of men can pretend to foresee the
emergencies which may arise in the life time of a nation and to
adopt beforehand an adequate provision for these emergencies. And
this is the task which is undertaken in the formation of a
constitution, intended at least when it is formed by the convention
and ratified by the people to be a permanent instrument. I am so
sensible that however carefully we may frame our work it will have
many defects that I wish to see a reasonable facility granted for
the purpose of amending any errors which in our blindness we may
commit. It belongs to Omniscience alone to see all the emergencies,
all the trials in the future to which a constitution is to be
subjected. Ours will certainly be subject to a severe test. It will
take its existence in a time of trouble and of danger, not as the
constitutions which have ordinarily been framed and adopted by this
people to operate upon a people peaceable and prosperous; but
everything will tend to subject our work to the severest test. Let
us at least then, while we admit that with our want of experience,
want of ability, perhaps, for the task we may commit many
oversights and errors on our work - let us at least have it to say
that if we present a work of that character to the people, they may
at least have a reasonable facility in making amendments. The
gentleman from Kanawha, (Mr. Brown), who announced this morning
that we need not expect his influence in favor of the new
Constitution, I want him to go to his constituents and to be able
to say that if there is error in the Constitution it can be readily
and without difficulty amended. I want these facilities for
amendments to exist without calling upon these tremendous engines,
the national conventions, which according to the decision of this
body are to possess when called upon the whole reserved rights of
the people. I want no convention assembled where this doctrine is
maintained in this land.

I have
examined with reference to this subject with some care the
provisions of the different constitutions. I find, as I stated this
morning, that the constitutions of no less than twenty-seven states
provide, in one shape or another, for amendments without calling
upon conventions to exercise the power. The constitutions of
sixteen states have some provision or other on the subject of
conventions. The plan which seems to be most generally preferred
throughout the different states in reference to amendments is that
which has been already spoken of by the gentleman from Tyler and
the gentleman from Wood. They allow the legislature, in the first
place, to propose amendments, provided the majority of all the
members elected to each house concur in making the proposition.
Then a general election is to intervene, a new legislature is to be
chosen; the proposed amendment stands referred to that legislature;
it is to be published from three to six months before the election
at which that legislature is to be re-elected. The people elect the
new houses with special reference to these amendments - at least
know that such subjects will go before the succeeding legislature.
When after a new election is had, the attention of the people being
directed thus plainly to the amendments which are proposed, a
majority of all the members of each branch is required again for
the purpose of acting on the amendment previously proposed. If in
the second legislature the amendment receives the concurrence of a
majority of all the members of each branch, then provision must be
made for submitting them to the popular vote, and they receive
their sanction and vitality at last only from the vote of the
people. The object of this is apparent. It is, as embodied in the
Declaration of Independence, that our systems of government shall
not be changed for "light and transient causes." It is to secure to
us the great safety that if our fundamental systems are to be
changed, at least they will be changed by the deliberate will of
the people. This is in conformity with republican principle,
because a majority of the people will have the power to change them
- not two-thirds. If we say that an amendment cannot be proposed
unless by two-thirds of the legislature, that proposition has a
converse to it. It is in substance saying that when the legislature
representing one- third of the people and supposed to express the
will of one-third of the people may prevent amendments. I will
submit for the consideration of the Convention the following as an
additional section:

Any
amendment to the Constitution of the State may be proposed in
either branch of the legislature; and if the same, being read on
three several days in each branch, be agreed to, on its third
reading, by a majority of the members elected thereto, the proposed
amendment, with the yeas and nays thereon, shall be entered on the
journals, and referred to the legislature at the first session to
be held after the next general election; and shall be published, at
least three months before such election, in some newspaper in every
county in which a newspaper is printed. And if the proposed
amendment be agreed to, during such session, by a majority of the
members elected to each branch, it shall be the duty of the
legislature to provide by law for submitting the same to the voters
of the State for ratification or rejection. And if a majority of
the qualified voters, voting upon the question at the polls held
pursuant to such law, ratify the proposed amendment, it shall be in
force from the time of such ratification, as part of the
Constitution of the State.

If two or
more amendments be submitted at the same time to the voters of the
State, they shall be submitted in such manner that the vote on. the
ratification or rejection thereof shall be taken on each of the
proposed amendments separately.

I will say
that there is nothing in this that is new. It is a provision
substantially as contained in the constitutions of several states.
I ought perhaps to remark that there are other plans proposed in
the constitutions of different states for the purpose of amending
the constitution with reference to a convention. Some of the states
have adopted this plan. They allow two-thirds of each house to
propose amendments. That amendment lies over - published, of
course, so as to give general information to the people - until
after another legislature is elected, that legislature being
supposed to be elected with reference to the amendment proposed. If
two-thirds of that legislature adopt the proposed amendment, it
then becomes part of the constitution without any direct vote of
the people. That is one plan.

Another
plan is that two-thirds of each House are allowed to propose
amendments, those amendments being published for the information of
the people, and a vote is taken, upon them at the next general
election. If then ratified by the popular vote, they become part of
the constitution. I have my doubts, however, whether any principle
that requires two-thirds of the house to act in reference to a
matter of this kind is proper, for it is virtually saying that
one-third of the State may prevent any amendment to the
Constitution.

There is
much the largest number of the states, however, requiring the
amendments proposed to pass two successive legislatures before they
are submitted.

THE
PRESIDENT. What disposition did the gentleman from Ohio propose
to make of the section he offered?

MR.
LAMB. I have no objection at all to laying it on the table if
the Convention wish to have the amendment before them some time
before acting on it. Just as the Convention please in reference to
that matter.

MR.
STUART of Doddridge. I was going to suggest it had better be
laid on the table.

MR. VAN
WINKLE. And be printed.

MR.
LAMB. Very well, sir; I will make that motion then.

MR.
HARRISON. Mr. President, I ask leave to call the attention of
the Convention to a proposition (No. 33) offered by my colleague
some time ago. I suppose it is proper now for the Convention to
take action upon it. I will read the proposition for the
information of the Convention:

WHEREAS,
When the legislatures of some of the states have made laws
restraining or forbidding the sale of intoxicating liquors,
•the courts have decided that such legislation was
unconstitutional.

THEREFORE,
RESOLVED, That the Committee on the Legislative Department be
requested to take into consideration the propriety of inserting the
following, or some similar provision in the
Constitution:

The
legislature may make laws regulating or prohibiting the sale of
intoxicating liquors within the limits of this Commonwealth, or in
any of the counties thereof, or in any corporation within the
State, when such legislation is demanded by the citizens thereof;
and the legislature may submit such laws to the people of the
State, county or corporation, as the case may be, for their
ratification or rejection, at the ballot box.

I am in
favor of the substance of this proposition being incorporated in
the Constitution for the reason assigned in the preamble. The form
of it perhaps is not such as I would desire. I suppose it is in
order.

THE
PRESIDENT. I would suggest that the report is under
consideration now, and perhaps it would be most proper to move to
pass by the report on the legislative department.

MR.
HARRISON. I thought we were about through with that.

MR.
LAMB. The proposition mentioned by the gentleman from Harrison
was under consideration in the Committee on the Legislative
Department. The members will recall that it was decided inexpedient
to report any provision of the kind. I believe that was the fact.
If the gentleman wants a report to act upon, we will consider that
as part of the report of the Legislative Committee.

MR.
HARRISON. I suppose, of course, the committee had the matter
under investigation but thought it inexpedient; but some members of
the committee may differ with the committee, as they have an
undoubted right to do, as to the expediency of that matter; and
with a view of testing it I will offer this as an additional clause
to the legislative powers:

"The
legislature may make laws regulating or prohibiting the sale of
intoxicating liquors within the limits of this Commonwealth, or in
any of the counties thereof, or in any corporation within the
State."

If it is
the pleasure of the Convention to take it up now, perhaps it may as
well be done now as any other time.

THE
PRESIDENT. The question will be on the adoption of the
proposition of the gentleman from Harrison.

MR.
HARRISON. It seems to me, for the reason assigned in the
preamble to this proposition, that it would be eminently proper for
us to provide in our Constitution for a settlement of the
constitutional right. It seems that in some of the states
heretofore, as the members are aware the legislature has undertaken
to regulate the sale and manufacture, and use perhaps, of
intoxicating liquors; and the question of the constitutional right
of the legislature to pass any such law has been raised and it
seems decided against the constitutionality of such acts. It is not
necessary that I should say anything this afternoon about the evils
of intemperance, I suppose. They are countless - innumerable - and
it seems to me in a body forming a constitution, or in a
legislature making laws, that with so great an evil as this staring
everyone in the face, there can be no objection on the part of any
one to authorizing the legislature at least to pass such laws if
they think proper.

We have in
this report a provision that the legislature may authorize the
courts to grant divorces. I do not understand exactly the object of
such a clause unless it be to remove some such objection as might
be raised to a law of this kind. It seems to me it will do no harm
even if it were a useless waste of words to insert a clause like
this in this Constitution. If it should be the wish of the body of
the people and the will of the legislature to make such laws
hereafter, the question which has destroyed the effect of them in
some states where they have been passed will be removed by our
action here now; and I hope it may be the pleasure of the
Convention to insert such a provision in this
Constitution.

MR.
LAMB. Mr. President, I think the motion of the gentleman from
Harrison is entirely unnecessary even to accomplish his own object.
We have adopted the first section of this report which provides
that the legislative power of this State shall be divided in a
senate and house of delegates. If it is necessary to adopt any
regulation by law in regard to the sale and use of ardent spirits,
the legislature have full power to do so unless there is something
in the Constitution to prohibit their action on that subject. I do
not see, therefore, that even if the legislation which the
gentleman speaks of is desirable that there is any necessity for
the motion he has made.

MR.
HARRISON. It has been suggested that as the question was
offered some time ago and the question was not then called to the
attention of the house before, perhaps it would be best to offer
this as a resolution to be adopted in this report and let it lie on
the table until some future day until we dispose of some other
parts of this report, when it can be called up again. I have no
objection to its taking such a course as that.

MR.
STUART of Doddridge. Offer it as a section of the
report.

MR.
HARRISON. If there is no objection, I ask that it be laid on
the table and I will call it up again.

MR.
POMEROY. I hope we will go back to the second section of the
report on the legislative department, where we are likely to have a
considerable discussion. I suppose we are prepared now to enter on
that matter. I move to go back and take up the second section; and
to bring the matter before the house, I move the section be
adopted.

MR.
CALDWELL. I hope my friend from Hancock will withdraw his
motion a moment. I hold in my hands propositions for additional
sections to this report and ask that they be laid on the table and
printed.

MR.
POMEROY. Certainly I will do that.

MR.
RUFFNER (in the chair). Does the gentleman wish them read at
this time?

MR.
CALDWELL. I am not particular about it.

MR.
STUART of Doddridge. I would like to have them read.

The
Secretary read as follows:

The
legislature shall pass no special act conferring corporate powers,
other than for banking or for municipal purposes, or when the
object cannot be attained under general laws; provided that the
power of municipal corporations to tax and incur debts may be
restricted by law.

Corporations, other than corporations for banking or for
municipal purposes, shall be formed under general laws, but all
general laws passed pursuant to this section may be altered or
amended by the legislature from time to time.

The
property of corporations created under general laws shall be
subject to taxation the same as the property of
individuals.

The right
of way may be granted by general laws to corporations, provided the
same shall not be appropriated to the use of any incorporation
until full compensation therefor be made in money - the amount of
compensation to be ascertained in a court of record, in such a
manner as shall be prescribed by law.

MR.
POMEROY. I renew my motion to take up the second
section.

The motion
was agreed to and the section taken up and read by the Secretary as
follows:

"2. The
senate shall be composed of eighteen and the house of delegates of
forty-six members. The term of office for senators shall be three
years and that of delegates one year, commencing, in each case, on
the first day of October next succeeding their election. The
regular elections for members of the legislature shall be held on
the fourth Thursday of May. But vacancies in either branch shall be
filled by election, for the unexpired term in such manner as shall
be prescribed by law."

MR.
POMEROY. My understanding at this time is that all the clauses
of this section were acted on except the first. We acted on the
first, also the third. A motion was made to change the time of
election, to change the term of senators from three years to two.
The matter that would come before us would simply be the first
clause: "The senate shall be composed of eighteen and the house of
delegates of forty-six members."

MR.
LAMB. I do not know whether this statement is exactly correct
or not. We acted on the other three clauses and adopted certain
amendments to them. I do not think the clauses were
adopted.

MR.
POMEROY. That is correct - simply amended them.

MR.
RUFFNER (in the chair). The whole section then is now open to
amendment. If there be no amendments proposed, the question will be
on adopting the section.

MR. VAN
WINKLE. I move to strike out "forty-six" in the second line and
insert "fifty-four." My reasons are: In the first place, I do not
think the house as large as it should be even if the valley
counties come in at the same rate. That would make it fifty-five.
But the stronger reason is this: The small number of delegates
owing to the peculiar numbers of the population of the different
counties the way they have arranged themselves is, I think, too
small to make an equitable distribution of them. That is to say, it
leaves the fractions too large. It makes the divisor too great, and
consequently fractions are left and difficulties are experienced in
assigning them to proper districts. The divisor is 6,618. Well, it
will be observed very few counties have 6,000 of a population or
multiples of it; some three or four of 12,000; but for the most
part neither number would suit. In fact, a still larger number
would suit better yet; but in view of the other counties coming in,
the house would be full as large. With the number I propose, it
would be sixty-six; which would be as large as need be probably.
But I think we get some nearer to the subject by increasing from
forty-six to fifty-four. There are nine senatorial districts, which
are arranged so as to present very nearly equal population. The
difference between the greatest and the least is 2500; the
difference between the others is of course less. It strikes me the
number, at any rate, ought to be a multiple of nine - ought to have
forty-five instead of forty-six. I propose to make fifty-four, six
times nine, assigning the six delegates to each senatorial
district. I intend to move at the proper time that that shall be
the mode in which the delegates shall be distributed. Or, if these
senatorial districts are retained, to be assigned an equal number
to each senatorial district. Gentlemen will observe that the
difference between the highest and the lowest senatorial districts
as arranged are not equal to one-half the multiplier proposed; and
the principle as adopted by this committee, and usually adopted
would give a delegate to less than one-half of the divisor; so that
there would be nothing growing out of that difference in the
districts which would require an additional delegate. If you give
six or any other number to each senatorial district and apportion
that six between the different counties composing the district you
get nearer a fair distribution than by apportioning them throughout
the State at large. Because each senatorial district comprising
one-ninth of the State will have the same number of delegates; and
in apportioning off the fractions, as they will in every district,
if a large fraction, less than one-half, of one county of the
district does not get directly represented, its interests being to
some extent with the other counties of the same district as they
are arranged here, it will have a representation from an adjoining
county and in matters affecting that section will be just as fully
represented as if it had the delegate itself.

I hope the
Convention understand the principle that I am endeavoring to get
at. I shall propose to give to each, to apportion the delegates
among the senatorial districts, giving to each the same number of
delegates with a view to the greater equalization of fractions;
each senatorial district dividing its own six (or five) members as
the Convention may vote, will come nearer to an equality of
representation with the other districts than if we divide them
throughout the State; for the reason that an unrepresented fraction
of one county will be probably represented from the adjoining
county, and this certainly is fairer than to take the excess
delegates away from the district where the fraction is and give it
to some distant district with which it has no immediate connection.
Senatorial districts are arranged, as I understand, on the basis of
throwing together in a district counties whose commercial interests
at least - perhaps other interests - are identical or nearly so;
counties that revolve around the same commercial center; whose
business looks in the same direction; whose manufacturing interests
are the same. And this gives to the senatorial districts a feature
which I am very anxious to impress upon you. I stated in some
remarks when this subject was up before that we failed to come up
to the true principle, to receive the benefit which is derived in
other places from the distinctive legislative powers in the two
houses, as for instance, in the British Parliament the House of
Lords represents an entirely different interest from the Commons,
and in the Senate and House of Representatives of the United States
different interests are as also represented. One represents the
states as such; the other the people. It is not necessary to
suppose that even in the British Parliament the interest
represented more particularly in the House of Lords is diverse or
opposite as regards the safety of each. But every question that
comes up, in order to be passed by those houses is looked at by the
two houses from different points of view and all the aspects which
the question bears are then likely to be regarded. I can see no
other way by which we can render the two houses beneficial to the
same extent, or nearly the same, except by something like the mode
the committee has pursued. It is true, by having a larger
constituency for the senator than for the delegate, this is to some
extent arranged; because the senator must consider the interest of
every county of his district, whereas the delegate will look after
the particular interest of his county. You set up, then, not
between the senator and the delegate an antagonism of interest, but
you do set up so much diversity of interest as to induce a more
careful examination by the two houses of all questions presented
than would be given them by one house.

I
therefore hope that with a view, as well as for the other reasons I
have stated, to render this distribution of delegates among the
senatorial districts better and more perfect, the Convention will
consent to increase the number of the delegates to the number I
have indicated, fifty-four. It is but a small addition - only eight
additional ones; but I think it will be found to subserve a very
useful purpose; will enable us to give better satisfaction to those
to be represented. Because the representation will bear more
equally than we can make it with a smaller number.

MR.
LAMB. I do not understand that the precise question which is
made here involves the question of apportionment of numbers to the
senatorial districts. If it does - if we are to have the two
questions under consideration at the same time, it must necessarily
lead to great confusion. I mention this matter because I want the
Convention to understand that I think there are some objections of
a grave character to the plans of apportionment suggested by the
gentleman from Wood in regard to the apportionment of delegates,
though I did not conceive that that question is directly involved
in the question before the house, and do not at present want to
discuss it, while, at the same time, I am in favor of the motion
itself which he has made to increase the number of delegates from
forty-six to fifty-four; and I will state very briefly the reasons
why I am in favor of that particular motion. In the first place, I
object to the number forty-six, and for this reason: It is an odd
number. It could not be possibly selected for any other purpose
than to subserve some particular object for the moment. Why should
forty-six be selected unless it happened to fit some particular and
special purpose? Now, I do not want our Constitution to go out with
that on the face of it. I must say that no man in any part of the
country seeing a number of that kind selected as the number of the
house of delegates can possibly give any other explanation to it.
It bears that on the face. If we select fifty-four, why there is
this reason to give for it It is exactly three times the number of
senators; and it is a very ordinary provision in the constitutions
of the different states to say that the districts shall consist of
one-third the number of representatives. Now, I ask the members of
this Convention if they can imagine why this particular number
(forty-six) is selected? Unless it was that it happened to fit some
particular case?

I have no
objection to this particular number. You have forty-four counties
this side the Allegheny mountains among which to distribute your
representatives. You have only to provide therefore for a house of
delegates only exceeding the number of counties by two. Now, every
county must be somehow or other represented. I do not care what
system of representation therefore you devise, you have not a
sufficient excess of delegates in order to distribute the numbers
of the house of delegates in anything like a fair proportion to
population. You cannot do it, and provide that every district of
the State should be represented in some way or other. You must have
a larger excess in order to enable you to give to those counties
which have a large population their proper share of representation
according to the principles you have established. You have
established unanimously the principle that representation should be
apportioned as nearly as possible in proportion to the number of
voters. When you come to apply these to numbers forty-six and
fifty-four observe the difference of results. Forty-six gives a
ratio of representation to one delegate for every 6618 whites;
fifty-four one to every 5637. By applying this ratio to the
population of the different counties the fractions on the ratio of
6618 amounts to 138,983; on the other ratio to only 90,000. You
have therefore to apportion a large number of your delegates among
fractions; a much larger number of your delegates among fractions
in the one case than in the other; and, of course - for it results
necessarily as an arithmetical proposition - your apportionment
approaches much less nearly to the principle you have adopted of
apportioning representation according to the number of the white
population. With forty-six members of the house of delegates and
your ratio of 6618, you have fractions not represented -
necessarily so - of 3881, 2908, and the like; with the other you
have no fraction in any case unrepresented amounting to 2100. Your
apportionment, therefore, will certainly approach much nearer the
principle you have adopted in the one case than in the other; and
you can see it must be necessarily so because with forty-four
counties forty-six is too small a number to allow an apportionment
according to population. Trace this matter through some of the
details. Adopting your house of forty-six and your ratio of 6618,
you give to Greenbrier, one of the new counties which you propose
to include, in the new State, with 10,499 white population, you
cannot give her but one representative. Pocahontas, right alongside
of Greenbrier, with a population of 3686, must have a
representative too, or her people would be entirely
unrepresented.

The number
fifty-four presents another advantage to my mind in regard to Mason
county. Mason, it has been stated here, complains loudly that the
census does not represent her population truly. I do not think that
complaint well founded; but I do not propose to discuss that
question. But if you adopt a house of fifty-four you give Mason
county two delegates with a population according to the census of
1860, (8752) and she will have no more if she has the full
population which is claimed for her in the report of the minority
of the committee (12,770). The only effect would be that in one
case she would be slightly less than double the ratio, and in the
other case slightly over double the ratio. But whether injustice
was done her by the census or not, if you adopt fifty-four she
would get all she would be entitled to in either case. For these
reasons, gentlemen, I think the Convention ought to adopt the
number fifty-four, which is a change of only eight. It can make
very little difference in the matter of expense, and it will
operate much more equally; it will enable you much better to shape
your practical measures in conformity with your general principle
that the members are to be apportioned in proportion to white
population.

THE
PRESIDENT. Members will address themselves to the Chair and not
to the house.

MR.
STUART of Doddridge. Mr. President, I yielded the floor to the
member from Ohio from the fact that he is chairman of the
committee, for the purpose that he might defend the report, I must
say if I had thought the gentleman was going to make an attack on
it I would not have yielded in that way. I think it is courteous
and right that the chairman of the committee should always have an
opportunity of defending a report, but I did not know he was going
to make an attack.

MR.
LAMB. Mr. President, will the gentleman excuse me one moment.
The gentleman will recollect that I gave full notice to the
committee that I intended to differ with them on this
point.

MR.
STUART of Doddridge. We are not to speak outside the committee.
The gentleman had a perfect right to make a minority
report.

I shall
not trouble myself with the cube-square-root gentleman from Wood to
get delegates into senatorial districts; because I do not think
this matter of much importance, whether you square them in or cube
them in so you get the people represented and get a sufficient
number of delegates. Now, sir, I am very much opposed to this
cumbrous body and making our legislature as large as the gentleman
from Wood proposes to do it. I would much prefer reducing it to
thirty-six from forty-six. Having forty-six as the number, you
divide I believe by 6618, or near that figure. The half of that is
3309. Every county adopted here in the report of the committee
which has a fraction greater than one-half of 6618 is entitled to a
representative. That gives nearly every county in the proposed new
State at least one representative. I am satisfied that their need
can be attended to if they have a representative, in the
legislature without giving two, three or four in order to get a
proper county so that the gentleman can divide it into equal
portions - thirds, halves and fourths. If the object of the
gentleman was to give all the counties a delegate, if his amendment
carried out that, I would give it some favor; but, mind you, sir,
it leaves these little counties which are not represented by making
forty-six members still unrepresented. You do not remedy the evil a
particle. Taking the forty-six and giving to the fraction 3309 the
right to have a representative will leave some four or five
counties not represented, with no members from those counties. If
the amendment of the gentleman from Wood by making it fifty-four
would give to these little counties a representative, I would be
willing to adopt his amendment. But it does not. It is only giving
the larger counties more representatives - but giving them more in
order that they may be better represented. It would give to Ohio
four instead of three. Now I am satisfied - and I think the people
of Ohio would be - with three representatives, who could represent
them as well as four.

MR.
LAMB. Will the gentleman excuse me for one moment. Fifty-four
would give Pleasants a representative by herself. It is only one of
the counties now included in delegate districts that would then
have over half the ratio or anything near half.

MR. VAN
WINKLE. Pleasants is a very hard case to understand.

MR.
STUART of Doddridge. Yes, it makes a difference in one county
but it leaves Clay, Webster, McDowell, Raleigh and Tucker without a
representative, and it is all for the purpose of giving these other
counties more representatives, giving a larger body to the
legislature. My experience is that we can get along much better to
make a smaller number. Because I am satisfied we will get along
much better with our legislation, with much less expense and much
more satisfaction to the people generally. If our present
legislature was one-half what it is at present, they would do the
business equally well, be at one-half the expense - one-third the
expense because the time would not be consumed - and they would get
along better. The only object of the amendment of the gentleman
from Wood seems to be solely for the purpose of giving more
representatives to these larger counties; because it does not add
to any of the other counties except Pleasants. I would much prefer,
making a special section in order to give Pleasants, one rather
than add seven more. Because those seven other representatives
would be tacked on to these other counties when they are all well
represented, and I see no use in it at all. I am for having a
government that will be as little expense as possible; but if I
could see any good that would be accomplished by the gentleman's
amendment, I would adopt it. But, sir, I move to amend the
amendment by making it thirty-six. That gives a divisor of 8431 and
a fraction of 4215. We would have a much more manageable body, we
would legislate much faster, much less expense, and equal
satisfaction to the people of the State.

MR.
POMEROY. This, as I understand it, is an amendment to the
amendment offered by the gentleman from Wood, to diminish the
number of the delegates to thirty-six. The original report of the
committee is forty-six; the amendment of the gentleman from Wood,
to increase it to fifty-four. I hardly know how to speak to this
amendment.

MR. VAN
WINKLE. The vote will be taken on the largest number
first.

THE
PRESIDENT. I would suggest the better way would be to strike
out, then fill with the number, voting always on the largest number
first.

MR. VAN
WINKLE. I understand the rule in such cases is that any member
may propose whatever number he pleases; they will be taken down by
the Secretary.

THE
PRESIDENT. Yes, sir; but there is no blank yet.

MR.
STUART of Doddridge. I must insist that the question must be
taken on the amendment to the amendment first, smaller or
greater.

MR. VAN
WINKLE. Not in reference to numbers or time.

MR.
POMEROY. There is just where the difficulty arises. A gentleman
insists on the vote being taken on his motion first, being
considerable of a tactician. He understands there is a great
advantage in an affirmative vote and will press that point. I am
opposed to thirty-six and in favor of fifty-four, not from the
suggestion that if that number is adopted it will classify them by
senatorial districts. I am not prepared to say that I will go for
that proposition. I would not from this fact: I want every county
in this new State to have a representative; I want the small as
well as the large ones. I would rather there would be a
considerable fraction in a large county than have a county
connected with another in a district; and when that matter comes
fairly before the house I would like to give my views on that
subject to show that the small counties ought to be represented, a
man elected by themselves; ought not to be hitched on to a large
county which may elect both members if they see proper and leave
the other county entirely unrepresented, or represented only by a
man who lives in another county. J feel to stand up for the weak
and try to defend them - and these counties are weak. I do not mean
weak in any sense except in numerical strength; and that is a thing
they cannot control. There is another reason for fifty-four. It is
just three times the number of the senate. In examining the
constitutions of the different states you will find there is a
proportion preserved, either four times the number or five times or
three times or double the number of the senate, but not a number
that is neither one nor the other, aa this number forty-six can be.
Having already fixed that the pay of the legislature shall be what
I consider low - a fair compensation enough - it will add very
little to the expense to have fifty-four representatives; and I
think we will be more than compensated for it in the State by
having each of these counties represented on the floor of the house
of delegates. Every county in the senatorial districts can be
represented by the senate but in the lower house I would have each
county represented here if possible. I do not know whether it will
be possible when we come to fix that; but one thing at a time; let
us fix the number. I am opposed to reducing this body to as small a
number as thirty- six and am in favor of increasing it to
fifty-four; and whatever may be the manner of voting, I hope
fifty-four will prevail.

MR.
SINSEL. Mr. President, there were great fears apprehended here
at the commencement of this Convention that there was a "hankering
after the flesh-pots of Egypt." I have never been desirous of
returning to flesh-pots of Egypt; but if you increase the places
and officers of this new State until they become as numerous as the
locusts of Egypt, we may cry out, "Would to God we were back by the
flesh-pots of Egypt." Now, within the bounds proposed for the State
we only have thirty-eight delegates in the legislature at Richmond
- would only have that. We have already increased it to forty-six,
and now it is proposed to make it fifty-four, an increase of
sixteen. Well, it is argued here that it would operate nearer
equally on the counties. Now, let us see how it will be. Here is
Pleasants with a population of 2926. They say that Pleasants then
would be entitled to a representative of her own, giving to Wood
county two, making three then where there is two now. Well, now,
here is Cabell with a population of over seven thousand, she could
only have one representative, with more than double the population
of Pleasants. Is that equality? Here is Taylor, with 7,300.
According to the basis laid down for Pleasants she ought to have
two - which we do not want. We have a fraction considerably over
the ratio already fixed. We are satisfied with it. Well, then, in
reference to Greenbrier and Pocahontas, Greenbrier has about ten
thousand and Pocahontas only some four thousand. Well, now, there
they are together. Their interests are one and the same. The
representative from Pocahontas would feel almost as deep an
interest in Greenbrier as he would in his own county and he would
see that no improper legislation would be passed which would
operate unjust towards her. And so with these other counties. Some
of them do not have a representative from each county. One of the
counties has only 1761, one only 1396 population, yet each must
have a representative.

When you
add up all these numerous offices - I see the Committee on the
Judiciary has proposed to make nine judges. I think that is about
right. I do not object to that. Look at the free-school system -
the offices that will be created by that. Then take the report of
the Committee on County Organization and you will be astonished at
the number of officers the people will have to feed and keep up.
They will cry out after a while, would God I was at the flesh-pots
of Egypt, because we are to be eat out, root and branch, would be
the natural cry. Well, how then? It is insinuated that the number
forty-six - that there must have been some particular reason for
it. Well, now, I can explain that. The Committee on the Legislative
Department know all about that. I was in favor of forty-two, and a
majority of the committee at one time were in favor of it, but they
found upon dividing it out amongst the counties it gave to Marshall
with a population of something over twelve thousand but one
representative, to Monongalia with a population of twelve thousand
but one representative; to Preston, the same. Well, now, they just
added in order that these four counties might have two, because the
fraction was much more than half, they consented that they might
add four more to have those counties fairly represented. Now I do
not see what selfishness there could have been in that. Marshall's
line was down here next the Panhandle; Monongalia and Preston lie
away over yonder in the other corner. Well, if we had given them
but one it would have been great injustice - or some, at least;
though I do not know that it would have amounted to much in the
end. Now, if we increase these offices to the extent proposed here
I would not doubt much if the people would vote down this
Constitution and we would be forced back to old Virginia. And then,
in addition to that, many of these counties away in the mountains
after this rebellion is put down - their population will be less
than it is now. Many of them will flee the country and never
return. So I think they are well enough represented. Many of them
have a representative of their own when they have not the number.
So I am opposed to increasing and opposed to diminishing it; in
favor of forty-six just as it stands.

MR.
STUART of Doddridge. I withdraw my amendment to the
amendment.

THE
PRESIDENT. The question is on striking out forty-six and
inserting fifty-four.

MR.
SOPER. Will the chairman of the committee instruct us. What
will the whole number of delegates in case these counties
conditional be taken in - what the whole amount will be? How large
the body will be?

MR.
POMEROY. Sixty-six.

MR.
LAMB. It would add about six.

MR. VAN
WINKLE. It will add twelve to fifty-four, or ten to forty-five.
It will be fifty-five or sixty-six.

MR.
LAMB. Mr. President, I would merely, in addition to the remarks
which I have made, call the attention of the house to the number of
members which other states have fixed for the house of delegates,
or house of representatives. I will state, in general, that if we
adopt the number forty-six, we will have the least house of any
state in the Union except little Delaware and Florida. Every other
house of representatives or house of delegates in the Union, I
believe, consists of over the number proposed here in the report of
the committee. Maine has 151; New Hampshire 206; Vermont 230;
Massachusetts 240; Rhode Island 72; Connecticut 215; New York 128;
New Jersey 60 and so on. One hundred is about the usual number
which seems to have been preferred by other states for their lower
house. The number proposed in the amendment is but little more than
one-half of what may be considered the usual number in this
country.

I may also
mention that another county besides Pleasants, if the number
fifty-four was adopted, would have a separate representative. It is
not a measure, as seems to be supposed by the gentleman from
Doddridge, peculiarly for the benefit of the large counties. It is
certainly a measure in which Ohio county has very little interest,
for I care not one fig whether we have three or four
representatives. Only whatever plan is adopted, whatever principle
is adopted, I shall insist, of course that it be fairly applied to
my county as it is to the others. But it is really a matter about
which I would not care that (snapping his fingers) whether we had
three or four representatives any further than it may become a
matter of importance that no injustice be done us in the principle
on which representation is apportioned to us. Kanawha county will
gain a member. Mason will gain her proper representation, and Wood
county, with her population of ten or eleven thousand will be put a
little in advance of these counties with three or four thousand. Is
not that proper and right? Or is there to be no principle in this
measure at all? Is it to be simply a scramble among us for so many
delegates? Not a contest for principle? I hope the Convention will
put the matter on no such footing, that their object will be
fairly, honestly, to give to all what we have proclaimed is the
right of all, representation as near as possible in proportion to
population; that this is not to be a mere idle declaration on the
part of this Convention, but it is to be a principle which if
possible we are to carry out practically.

MR.
HAYMOND. I understand from the gentleman from Ohio if we take
the forty-six delegates it would place us by the side of little
Delaware. I will say to this Convention that if it will do that it
is the very place where I want to be placed. Sir, the little state
of Delaware is the star of this Union. She is out of debt and has
money loaned out. There is where I want to be.

MR. VAN
WINKLE. Before the gentleman wishes to occupy the floor, I
should like to say a few words although it is the second time. And,
first, in reply to the gentleman from Marion. It is very
unfortunate for the little State of Delaware that she has nothing
to go in debt for. It is a state of three counties. If the
gentleman wants to bring us down to that I cannot go with
him.

MR.
LAMB. Four counties.

MR. VAN
WINKLE. She has not any place where she could make any internal
improvements; no commercial interests that would require her to go
into debt to any great extent. If merely being out of debt is what
we are to strive for, we had better go back to old times when there
was no credit or anything else, and cite these hard-money countries
of Europe as the glorious country for us. There is some principle
about this matter - one that has been sanctioned by a very long
experience; one that can be easily traced and designated. It is
most certain from the statistics with which the gentleman from Ohio
has favored us that in reference to the number of which the lower
house in the several states is composed, and it is certain from
other circumstances, and from what we know and have read on the
subject, that as a general rule there is some standard and some
policy, something to be gained by making the lower house
comparatively numerous. If the theory of representative government
as declared almost in terms in the Federal and other constitutions,
if the theory is that there shall be a direct, or nearly direct
representation of the people, then sir, that theory most certainly
requires that the house should be made as numerous as can be
conveniently managed. The interests of the people would doubtless
be better represented from this little state of 150 than by the
proposed number. But there are limits to these things. We are
limited, and other states might be, by the unwieldly character of
the body when assembled. I think the British House of Commons has
about 700 members, and they despatch business as rapidly as any
legislative house of which I have information. The lower house of
Congress has 233. The State of Massachusetts, it seems, has more
than that. But be this as it may, there is a limit, of course, or
the house would become unwieldly and too expensive. Now, sir,
fifty-four, in reference to the population and extent of this new
State is, in my opinion, a rather small number. I would rather see
it increased than diminished; and I think if it were increased it
would tend to represent more directly the wishes of the people than
the smaller could. There has been in the State of Virginia an
extreme division into counties and minute divisions. Counties have
been made very small and very diverse, or become so afterwards, in
their population. This renders it necessary that the largest number
that can be conveniently used in reference to these other
considerations should be adopted in order that there may be a
satisfaction among the people with the representatives assigned
them. I am satisfied that if this forty-six apportionment goes out
it will create great dissatisfaction. Counties will not be fairly
represented. I favor the lowest number that would at all answer the
purpose. As the gentleman from Doddridge showed us, there is not a
county excluded from a separate representative that has over 1700
of population. Well, now, as much as we might wish to accommodate
those counties, there are but four or five of them and it is to be
hoped they will agree against another apportionment. As much as we
might wish to accommodate them, it would be utterly impossible
without doing infinite injustice to others, with a single
representative. The largest of them - or the average - has not more
than one-fourth of the divisor that is selected; and to give - as
the gentleman from Taylor seems inclined to do, to give to 1700 the
same he would be willing to give to Wood county, would be an
injustice that I think we would be as unwilling to submit to as I
hope this Convention would be unwilling to inflict, because we
would then have a fraction of four thousand and a good deal upwards
utterly unrepresented. There is an objection and always will be,
and it is an objection that these very small counties will have to
put up with, much as we regret it. The necessity for it arises out
of the circumstances of the case; and unless we extend the house to
some 180 we could not give each of them a representative; or if we
allowed them one for a fraction over one-half we could not do it
with a house of less than one hundred and do justice to the rest.
But it is the part of wise men when they cannot do all that is
desirable to do the best they can; and I think the chairman of the
committee has very certainly shown that although the amendment
proposes to add eight members under which more justice will be done
than with the forty-six. And I appeal to members now if for the
sake of having made a good distribution, for popular applause and
for the satisfaction they would feel in their breasts, that they
would do much greater justice by giving us the fifty-four members
than forty-six. It is important certainly that there shall be a
feeling of satisfaction as far as possible, as far as we can by
adhering to principle and strict justice, that there should be a
feeling of satisfaction throughout the borders of the State, that
when we go into operation as a state there should be as little
cause for heart-burning as possible. Our prosperity as a state will
very much depend on the harmony with which we enter on it. If we
can go in satisfied that every portion has had fair treatment in
reference to such other measures as may affect them locally, then
we may look for that harmony which may build up our State rapidly.
But if we go into it with these heartburnings to any extent, I am
sure, sir, a state of things will be engendered which every member
of this body will regret to see.

Now, as to
the mere cost of eight additional representatives, what is it if
they do their work well - if they effect this purpose of giving not
only the appearance but the reality of more justice to others? What
is the cost compared with that? We are not here to make a tuppenny
State - of reducing everything to the single purpose of reducing
taxes. Everybody knows the expenses of the State could be paid with
very low taxes. That is not what foisted this debt on us. We might
have had as large a school fund as any other state if it had not
been for the accumulation of the debt for internal improvements.
And this new State can go into operation now with all these things
the gentleman speaks of and yet be managed very economically. And I
wish to say, as my opinion - I have not examined as strictly into
the subject as I should to pronounce decidedly upon it - 1 am very
strongly of opinion that they will find if the government under the
systems we devise here goes into operation they will have a cheaper
government than they have ever had before. Our complaint is not so
much that we have had to pay taxes; it is that we have had no
benefit for them. If we can substitute a system that will give us
the advantages that are enjoyed in other states of this Union,
which we have been deprived of, then I apprehend the cost cannot in
any event be more than will be abundantly compensated. But I think,
as I have already said, that they will find when we get into
operation, with the representation proposed here we really will
have a cheaper government than we had before. Gentlemen must not
consider, sir, in fixing this number of representatives that if we
had so many in the old legislature so many would do to make a
separate legislature. That certainly would not be the case. We will
want more senators certainly. I might consider in that connection
that we have been complaining that we did not have the
representation to which we were justly entitled. It was a great
complaint previous to 1850, and is to this day in reference to the
senate. So that that argument defeats itself and shows that in
increasing the number we are only doing what our people have been
contending for. They have been contending for greater
representation in the counties in which we are about to give them,
in a separate State, precisely what they have been contending for.
I think upon the whole the proposed increase is so trifling that
gentlemen will give it to us in order that these advantages may be
realized.

MR.
BROWN of Kanawha. I feel some doubt on this subject. I have a
strong antipathy to enlarging the number for the main reason that
we augment the expense of the government. Still I fully concur with
the gentleman who has taken his seat that every extension in the
number of the delegates brings the government more directly home to
the people and in that view it is a very great advantage. It
popularizes it just in that much precisely. And in that view it
commends itself to my favor. But this is not the only benefit to be
derived from it. In fact, these things are benefits and evils, and
we have to balance them. One difficulty we have in voting on this
subject is that we have made no division, or attempted none, upon
this new number fifty-four. Therefore, I do not know how it will
work. I have had no opportunity. I have attempted it on the number
forty-six; but there were difficulties to be overcome there. I
confess myself content with this report, and I have no objections
to attempting it again on the fifty-four, and if the advantages can
be found I shall not hesitate to add the additional number. If, on
the other hand, I can find them by diminishing to thirty-six, I
shall not hesitate. Have no particular preference for forty-six
over any other number; and therefore before having this vote, if it
is the only subject for consideration, I propose we should suspend
this matter until tomorrow that we may have an opportunity of
looking over it tonight.

MR.
HAYMOND. The difference in results between the two numbers
would be about this. Pleasants and Wood are a delegate district in
conformity with the numbers embodied in the report and entitled to
two delegates. If fifty-four be adopted they would be separate.
Pleasants having more than half the ratio would be entitled to a
delegate to herself; Wood would be entitled to two delegates.
Barbour would have two; Greenbrier two; Jackson two; Kanawha would
have three and Mason two. Monroe would have two and Ohio four,
being an increase of one delegate in each case. The rest would be
the same as now, except that Raleigh would be separated and
entitled to a delegate by herself.

MR.
BROWN of Kanawha. I move to postpone the subject.

MR.
HERVEY. Upon that motion I wish to submit a remark or two. It
would be evidently proper to postpone this question. This
apportionment is made on a report embracing forty-four counties -
apportioning delegates among forty-four counties, population
304,433. Now, there are seven additional counties within our
boundary which are not taken into this count.

MR. VAN
WINKLE. They will make about two senatorial districts with the
same population as the others and would be entitled to the same
number of delegates as the other districts.

MR.
HERVEY. I wish to call the attention of the Convention to this
additional fact, that the senate shall be composed of a certain
additional number and it is now proposed to fill that blank, and if
that blank is filled there is no provision -

SEVERAL
MEMBERS. There is another provision in another place, already
adopted.

MR.
HERVEY. I speak now of the house of delegates; and if the house
proceeds now to fill this blank absolutely without taking in these
seven transmontane counties, it will evidently have to do this work
over again for it is leaving out a population of 54,059.

MR. VAN
WINKLE. The case is provided for in Section 10, passed
by.

MR.
HERVEY. That may be true, but in our estimates this argument
has not been taken into account.